Having examined the notified draft, the EU would like to raise the following issues:

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1 Ref. Ares(2016) /01/2016 COMMENTS FROM THE EUROPEAN UNION REGARDING NOTIFICATION G/TBT/N/IND/51 DRAFT FOOD SAFETY AND STANDARDS (ALCOHOLIC BEVERAGES STANDARDS) REGULATIONS, 2015 The European Union (EU) would like to thank the Indian authorities for providing the opportunity to comment on the "Draft Food Safety and Standards (Alcoholic Beverages Standards) Regulations, 2015" notified on 1 December Having examined the notified draft, the EU would like to raise the following issues: 1. General comments 1.1. The EU would appreciate clarification from the Indian authorities on whether the notified draft is intended to complement the already existing standards BIS IS 5286:2005 (Alcoholic drinks vodka specification), (reprint 2003) (Glossary of terms relating to alcohol (ethyl) industry and trade) and (Neutral spirits for alcoholic drinks specification) or whether these standards will be repealed by the notified draft The EU would like to underline that definitions for products of vitivinicultural origin, including wine, are developed by the International Organisation of Vine and Wine (hereinafter referred to as the OIV) and are listed in the International Code of Oenological Practices of the OIV. The EU notes that the definitions laid down in the notified draft are not always in line with those recommended by the OIV and would like to invite India, as a member of the OIV, to refer to these definitions, which are widely followed at international level According to point of the notified draft, ''wine may contain additives permitted under the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011''. A proposal to revise the Indian Additives Regulation was notified under the SPS Agreement in 2015 (G/SPS/N/IND/108 draft Food Safety and Standard (Food Products Standards and Food Additives) Amendment Regulation, 2015). The EU has a number of concerns on the restrictive nature of the list of allowed additives as set in the draft Additives Regulation of In particular, the list is exclusively based on the Codex General Standard for Food Additives (GSFA, CODEX STAN ) and does not take into consideration values set by other international bodies such as the OIV. Considering that the work on the GSFA has not been completed (many draft food additive provisions are currently in the process of further consideration), the GSFA does not include all food additive uses which might be safe and technologically justified. The EU would like to suggest to India to explicitly refer, in the current notified draft, to an extensive list of allowed additives including all those set by Codex and the OIV The EU notes that a maximum alcohol content of 50% by volume is fixed in the notified draft for some distillates, while no maximum level is fixed for liqueur. This 1

2 provision would constitute a barrier to the import of some distillates. The EU would like to ask the Indian authorities to share the rationale for setting such a limit The EU notes that a number of requirements in the notified draft (e.g. maximum alcohol content, limitations on allowed flavours) would render exports of some EU beers to India impossible The EU would like to ask the Indian authorities to confirm that the categories of products mentioned in the notified draft correspond to the sale denomination of those products. The EU would also like to suggest to the Indian authorities to consider the inclusion of a general category for products that do not fall within any of the specified categories. Just as a reference, in the EU the general category spirit drink has been created for spirits that do not comply with any of the specific definitions established at EU level The EU would like to note that a number of labelling provisions are not in line with the Codex standard for the labelling of prepackaged foods (CODEX STAN ) (e.g. the requirement for the indication of expiry date) or with OIV recommendations. The EU would like to invite India to align the notified draft to Codex and OIV practices which are widely followed at international level. The EU notes that there are also other labelling provisions that are too restrictive (allergen and health warnings) and would like to suggest to India to amend or clarify such provisions The EU would also like to reiterate that trade facilitating measures such as labelling of imported alcoholic drinks by means of stickers should be provided for The EU would like to ask the Indian authorities to provide a reasonable transition period to implement the necessary changes to comply with the new provisions of at least six months and to allow the sale of products already present on the Indian market until stocks are exhausted. 2. Specific comments Point Distilled Liquor/ Spirits Point of the notified draft defines distilled liquor/spirits as "any alcoholic liquid obtained by distillation of fermented liquid/mash depending upon the product, distilled at less than 95% volume/ volume (v/v) of ethyl alcohol". This provision would create a barrier for some liquors/spirits which are distilled at up to 96% vol. The EU would like to ask the Indian authorities to set the limit at 96% and share the rationale for the current setting. Point Hops Point of the notified draft defines the nature of hops products used: Hops are used in the form of flowers, extracts, pellets or hop oil of different alpha acids. This provision would create a barrier insofar as this list does not cover all the types of hops products which may be isomerised or hydrogenated or reduced, particularly in the case of pellets. The EU would like to ask the Indian authorities if they consider 2

3 this description of hops products as an exhaustive list. If this is the case the EU would like to ask the Indian authorities to consider enlarging it to all the types of hops products or to give the possibility to profit from the evolution of techniques by introducing a broader definition. Chapter 2 Distilled Alcoholic Beverage Standards Point 2.1 Brandy Point 2.1 of the notified draft defines brandy as "alcoholic liquor made from fruits such as grapes and other fruits". The EU notes that brandy is made from the distillation of wine and not from distillation of fruits such as grapes. According to point of the notified draft blended brandy "is a mixture of at least 2 percent grape brandy with fruit brandy/ neutral spirit/ rectified spirit". The EU notes that blended brandy should refer to the blending of brandies and not to a mixture containing fruit brandy and ethyl alcohol. In this respect the EU would like to refer to the definition of brandy provided for in Section 7.6 of the OIV International Code of Oenological Practices and would like to invite India, as a member of the OIV, to refer to it. Point Cognac The EU notes that Cognac is a "wine spirit" and that the notified draft does not define the "wine spirit" category. The EU would like to suggest to the Indian authorities to define the "wine spirit" category in order to cover Cognac and similar spirit drinks in line with Section 7.5 of the OIV International Code of Oenological Practices. Point According to point of the notified draft "the ethyl alcohol content of brandy shall be in the range of 36 to 50 per cent by volume at 20 degree C". The EU, therefore, would like to ask the Indian authorities to share the rationale for setting such a limit and to invite India, as a member of the OIV, to refer to the definition of 'brandy' provided for in Section 7.6 of the OIV International Code of Oenological Practices. Point 2.4 Liqueur/ alcoholic cordials Point 2.4 of the notified draft lays down a limited list of products that can be used for the production of liqueurs. The EU would like to ask for the extension of the list to include any agricultural product or aroma in order not to exclude the import of some EU liqueurs into the Indian market. The EU notes that according to the notified draft liqueurs contain "more than 15% ethyl alcohol by v/v". This provision would exclude liqueurs containing 15% ethyl alcohol by v/v, which is the minimum level in the EU. The EU would like to ask the Indian authorities to consider the possibility of changing the expression "more than" to "at least". 3

4 The EU notes as well that the notified draft establishes a 10% maximum content of sugar. Since liqueurs are typically sweet alcoholic beverages, the EU would like to ask India not to fix a maximum limit of sugar for liqueurs and to explain the reasons for setting a 10% maximum limit. Point Sambuca Point defines sambuca as an "Italian anise flavored liqueur/cordial". The EU notes that sambuca is not an Italian liqueur. The term "sambuca"' can be used by any producer if the product complies with the relevant definition. Point Point forbids the use of caffeine in the production of liqueurs. The EU would like to ask India to confirm that this prohibition does not apply to coffee-based liqueurs but only refers to the addition of caffeine as an additive. Point Other requirements According to point , liqueurs shall "conform to the requirements prescribed in Table-1". However, the EU notes that Table-1 does not provide any requirement for this category. The EU would like to ask if this provision should be interpreted as meaning that the distilled spirit base of the liqueur (or alcoholic cordial) is required to comply with the parameters laid down in Table-1. Point 2.5 Rum The EU would like to note that the definition of "rum" envisaged in the notified draft is very wide. According to the notified draft, rum can be made from sugar beet instead of sugar cane or, even with the use of ethyl alcohol and the possibility to add artificial flavourings. The term "rum" is generally used for spirit drinks made from the distillation of sugar cane and, therefore, the definition laid down in the notified draft could be misleading. Point Vodka Point of the notified draft defines vodka as "the distilled alcoholic beverage made from neutral spirit which may be obtained from rye, potato, cassava, molasses and fermented grains". The EU notes that vodka is made with ethyl alcohol that may come from the distillation of any agricultural product. The establishment in the notified draft of a limited list of products that can be distilled could exclude the import of some vodkas into the Indian market. The EU would therefore ask for the notified draft to specify that, for the production of vodka, ethyl alcohol obtained from the distillation of any agricultural product can be used. Point 2.8 Whisky/Whiskey As for the definition of "rum", the EU considers that the definition of '"whisky" envisaged by the notified draft is very wide. According to this definition, whisky can be made with ethyl alcohol (neutral spirit) and additives including artificial flavours. 4

5 The term "whisky" is generally used for spirit drinks made from the distillation of cereals and, therefore, the definition laid down in the notified draft could be misleading. Chapter 3 Standards for Wines Point 3.1 Wine The EU notes that according to point 3.1 of the notified draft wine may be produced from restored or unrestored condensed grape must and according to point water can be added to wine up to 35 per cent of the volume. The EU notes that this provision is not in line with Section 3 of the OIV International Code of Oenological Practices, nor with the worldwide shared definition of wine. The EU also notes that point of the notified draft allows a range of alcoholic content in wine of "not less than 7.0 and not more than 15.5% by volume". The EU notes that the OIV International Code of Oenological Practices does not provide for a maximum alcoholic strength. As for the minimum level, it is established that "alcohol content shall not be less than 8.5% vol." with the possibility of reducing it to 7% vol. in some specific circumstances. The same comment applies to point of the notified draft ("Table wine"). The EU would like to suggest to India to follow the recommendations of the OIV as regards wine definitions. Point Red Wine The EU notes the definition of red wine in the notified draft does not include red wine obtained by blending red wine and white wine. The EU underlines that the blending of red wine and white wine in the production of red wine is allowed in the OIV International Code of Oenological Practices. Points to The EU notes that the content of sugar related to 'dry', 'medium' and 'sweet' wine is not in line with OIV standards. Most of the dry wine on the market has a level of sugar below 0.4% which would be contrary to the notified draft. The EU invites India to refer to section of the OIV International Standard for the Labelling of Wines and to express the reducing residual sugar in g of sugar/l. Point Fortified wine To be in line with the OIV, it should be provided that the neutral spirit used to fortify wines can only be of grape origin, except for aromatised wine like vermouth. The EU invites India to consider a classification of wine types in line with the OIV. Points to The names Port, Sherry, Madeira and Marsala refer to certain EU wines with Protected Denomination of Origin (PDO). The EU invites India to delete these 5

6 references from the notified draft as their inclusion would create confusion and legal uncertainty. Point Vermouth and point Aperitif Wine The EU would like to highlight that according to the relevant international standards those two types of wine belong to the same category of aromatised wine products. The EU, therefore, invites India to refer to Section 6.8 of the OIV International Code of Oenological Practices for the definition of this category of alcoholic beverages. Point Dessert wine The EU notes that his type of wine is not defined at OIV level and considers that a definition of this type of wine should be first discussed at international level. India, as a member of the OIV, may consider the possibility to introduce such a definition for discussion at OIV level. Point Sparkling Wine The definition of sparkling wine provided for in the notified draft requires a second fermentation for all sparkling wines with minimum pressure of 3.5 bars. The EU notes that this definition is too restrictive as sparkling wine can also be made with one fermentation and a minimum pressure of 3 bars. The EU would like to suggest to India to remove the obligation of a second fermentation for sparkling wines. Point Crakling wine The EU notes that the definition of "crakling wine" provided for in the notified draft could be more precise to avoid legal uncertainty. In addition, the term "cremant" is used in the EU to define a sparkling wine. The definition of "crakling wine/ petillant wine/ frizzante wine" should only define wine made effervescent with carbon dioxide with a minimum pressure of 2.5 bars at 20 C. Point Retsina wine Point states that retsina wine is "table wine fermented or flavoured with raisin". The EU notes that retsina wine is a typical Greek wine the specific flavour of which comes from "Aleppo pine resin" and not from "raisin". Chapter 4 Standards for Beer Point 4.1 Definition of beer The EU notes that the definition of beer provided for in the notified draft would exclude the use of unmalted grains. This would create a barrier to trade insofar as unmalted grains may also be used in the manufacturing of beers. The EU would like to ask the Indian authorities to share the rationale for excluding the use of unmalted grains. 6

7 In addition the EU notes that beer is defined as an "un-distilled alcoholic beverage" while it is commonly defined as a "fermented alcoholic beverage". The EU would like to ask the Indian authorities to share the rationale for defining beer as an "un-distilled alcoholic beverage" instead of a "fermented alcoholic beverage". Point 4.2 Classification of beer according to alcoholic strength Point 4.2 of the notified draft lays down a classification of beers based on their alcohol content. The EU would like to observe that, by introducing a maximum level of 8% alcohol by volume for the super strong category, the legislation would discriminate against certain beer types with a higher level of alcohol by volume. The maximum alcohol by volume level which may be obtained with traditional brewing (i.e. without fortification) would be in the range of 15 to 18%. The EU would like to ask India to share the rationale for introducing such a restriction and to consider removing the requirement for the maximum level of alcohol by volume. The same comment applies to Point 1, table 3 and Point 1, table 4 of the Appendix. Point Pilsner According to the notified draft, Pilsner is "a type of lager beer which is light with % alcohol and has a medium hop flavour". The EU would like to point out that the alcoholic strength of Pilsner beer can be higher than the maximum level proposed in the notified draft. The EU would like to ask India to share the rationale for introducing such a low maximum threshold and to consider removing the requirement for the maximum level of alcohol. Point Flavoured Beer According to Point 4.3.7, flavoured beer "is a beer-based beverage with added natural or nature identical flavours". The EU would like to ask the Indian authorities to share the rationale for limiting the use of flavours to natural or nature identical ones and to consider the acceptance of artificial flavours. Point Irish beer The EU notes that "Irish beer" is considered as a type of beer while it is not registered in the EU as a geographical indication. In addition, there are several European beers with registered geographical indications which are not listed. In order to avoid legal uncertainty, the EU would like to ask the Indian authorities to consider deleting the denomination "Irish beer" from the notified draft. Point Other Requirements Point of the notified draft includes "clarity" as a requirement for beer. The EU notes that many beers are designed to be served cloudy with yeast and for some styles of beer, such as a wheat beer, cloudiness is desirable. In the light of the above, the EU would like to ask India to share the rationale for introducing this 7

8 requirement and to consider removing the ''clarity'' requirement from the notified draft so as not to exclude cloudy beers. In addition, the EU notes that according to the notified draft beers (with the exception of draught beers) should be pasteurized. This provision creates a barrier to trade insofar as some EU beers contain micro-organisms which are both brewery yeast and fungal spore which cannot germinate due to factors such as alcohol, ph or lack of nutrients so that, in several cases, pasteurization is not technically indispensable for marketing a safe product. Therefore, the EU would like to ask the Indian authorities to share the rationale for requiring pasteurization on beers (with the exception of draught beer). Chapter 6 Specific Labelling Requirements for Alcoholic Beverages Point Declaration of Alcohol by volume According to Point 6.1.1, the declaration of alcohol by volume should be expressed in ml/100 ml. The EU would like to invite the Indian authorities to allow the indication of the alcohol content also in litres (l) or centilitres (cl) as provided for in the OIV International Standard for the Labelling of Wines (point 4.6 'Presentation of nominal volume'). Point 6.2 Labelling of Standard Drink Point 6.2 of the notified draft establishes the obligation to indicate "on the label on a package of a beverage or a food capable of being consumed as a beverage which contains more than 0.5% alcohol by volume" a statement of the approximate number of Standard Drinks contained in a bottle. The EU notes that "Standard Drinks" are not harmonised at the international level. Therefore, the obligation to indicate the approximate number of Standard Drinks contained in a bottle would constitute a barrier to trade. The EU would like to ask the Indian authorities to share the rationale for introducing such a measure and to consider removing this requirement from the notified draft. Point 6.4 Labelling of imported alcoholic beverages The EU would like to ask India if the use of stickers would be allowed for all the mandatory requirements established by the notified draft. Point 6.8 Food containing alcohol Point 6.8 of the notified draft states that "Food containing alcohol must not be represented in a form which expressly or by implication suggests that the product is a non-alcoholic confection or non-alcoholic beverage". The EU would like to ask the Indian authorities to clarify what should be considered as "a form which expressly or by implication suggests that the product is a non-alcoholic confection or non-alcoholic beverage". Point 6.9 Wine labelling 8

9 With reference to point of the notified draft, the EU would like to ask India to consider that the indications "dry", "semi-dry", "semi-sweet" or "sweet" on the labels should only be required for sparkling wine and not for all wines. According to point of the OIV International Standard for the Labelling of Wines, the terms relating to the sugar content of a wine are part of the optional information to consumers. It is also useful to stress that a specific labelling standard for sparkling wine is currently being discussed at the OIV. The EU also notes that point of the notified draft states that "wine labels must show amount of alcohol in per cent by volume". The EU would like to suggest that a tolerance level of 0.5% vol. or 0.8% vol. be introduced for sparkling wines as provided for in the OIV International Standard for the Labelling of Wines Labelling According to point 6.10 of the notified draft "Alcoholic Beverages which contain less than 10 % alcohol shall mention the date of expiry on the label. This must consist of month and year in that order and preceded by the word 'Expiry Date ' or 'Use By ' mandatorily. However, the manufacturer may use the expression 'Best Before' as an optional additional information". The EU notes that according to the Codex General Standard for the Labelling of Prepackaged Foods (CODEX STAN , point 4.7.1), for alcoholic beverages containing less than 10% alcohol, the minimum durability has to be declared with a "best before date". The EU, therefore, would like to suggest to India to follow the Codex standard by using the expression "Best Before" instead of "Expiry date" or "Use by" for the declaration of the minimum durability. Point Allergen warnings The EU notes that according to the OIV Resolutions 502/2012 (on the limit of detection and quantification) and 520/2014 (Code of good fining practices for wine to be applied in the use of proteinaceous wine fining agents with allergenic potential) egg white and milk have to be mentioned only if there are residues of that substance in the final product, contrary to the requirement of point of the notified draft. The EU would like to suggest to India to amend the requirement of point of the notified draft accordingly. Point 6.13 Statutory Warning The EU notes that point 6.13 of the notified draft imposes the obligation to put on the label of alcoholic beverages the following warning: "Consumption of Alcohol is injurious to health". The EU considers this requirement to be excessive and would like to invite India to refer to "excessive consumption of alcohol" as being injurious to health rather than to consumption as such. 9

10 Appendix Point 10 of Table 1 Methyl alcohol The EU notes that the maximum limit for methyl alcohol has been set at 10 mg/litre of distilled absolute alcohol. The EU notes that this limit would constitute a barrier for some EU spirit drinks. The methanol content varies according to the category of spirit drinks and can be much higher for some of them (as for example "fruit spirits"). The EU would like to ask for the rationale for setting such a low methanol limit for all spirit drinks. Table 2 Requirements for wine The EU notes that several parameters are quality parameters, and are not relevant for safety or for the detection of unauthorised oenological practices. A maximum level for those parameters would lead to additional technical controls and might create unjustified technical barrier to trade. The EU would like to ask India to consider not including the following parameters in this notified draft: aldehydes (1), esters (6), higher alcohols (8), iron (9), ph (13), pyridine (14), residual extract (16) and total acid (18). The EU notes that the minimum limit for carbon dioxide set at 3.5 bars would create a technical barrier for the sparkling wine with 3 bars. The EU would therefore ask for that limit to be lowered to 3 bars. The EU notes that the limit for copper is more restrictive than in the OIV standards where the limit is 2 mg/l for fortified wines. The EU would like to suggest to the Indian authorities to set the limit for copper at 2 mg/l. The maximum level of ethyl alcohol set at 15.5% vol. is not in line with OIV standards where no maximum limit is set. The EU would suggest to India to remove the limit for ethyl alcohol in wines. The maximum levels for methanol (methyl alcohol (11)) is not in line with OIV standards: 400 mg/l for red wine and 250 mg/l for white and rose wine. The level for reducing residual sugar is not in line with OIV standards and may create technical barriers to trade (see comments above on point to 3.4.8). The levels for sulphite (total sulphur di-oxide (19)) set in the notified draft are not in line with OIV standards. The EU would like to invite India to align those maximum limits to the OIV International Code of Oenological practices: 150 mg/l for dry red wine, 200 mg/l for dry white and rosé wine; up to 400 mg/l for sweet white and sweet red wine; 235 mg/l for sparkling wine; 200 mg/l for fortified wines. Tables 3 and 4: Requirements for beer ph range 10

11 The EU notes the range of ph level is This would create a barrier to trade insofar as a number of EU beers are outside of this range and would be in the range of The EU would like to ask the Indian authorities to share the rationale for excluding beers with a ph above 4.5 and under 3.8. Carbon dioxide The EU notes that the notified draft set a carbon dioxide fixed content of 2.5 v/v. This would create a barrier to trade insofar as EU beers are in a carbon dioxide range of v/v. The EU would ask the Indian authorities to share the rationale for excluding beers with a carbon dioxide content other than 2.5 v/v. Copper The EU notes that the maximum level for copper of 1.0 mg/l is more restrictive than the WHO guideline value of 2 mg/l for copper in drinking water. The EU would ask the Indian authorities to share the rationale for setting such a lower limit. Total plate count The EU refers to its comment on on pasteurization. Thus, it suggests adapting the total plate count in Table 3. In addition, the upper limit of 50 cfu/ml creates an obstacle to trade insofar as a number of EU beers overpass this limit. The EU would like to ask the Indian authorities to share the rationale for excluding beers with more than 50 cfu/ml. Yeast and mould The EU refers to its comment on on pasteurization. Thus, it suggests adapting the yeast and mould maximum limit in Table 3. The EU would be grateful if the above-mentioned comments could be taken into account and replied to. Electronically signed on 25/01/ :11 (UTC+01) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563 11