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What You Need to Know about the Federal Trade Commission’s Final Rule Regarding Labeling of Ethanol Blends Beyond 10%

February 9, 2016


The Federal Trade Commission (FTC) has issued a final rule on how ethanol blends above 10% must be labeled at retail fuel stations. The final rule, which was published on Jan. 14, will go into effect July 14. The Renewable Fuels Association (RFA) has been heavily engaged with the FTC since mid-level and higher-level blends made their presence on the fuels landscape. Among other things, the final rule requires the FTC to: 1) establish specific rating and certification requirements for ethanol blends above 10% to a maximum of 83%; and 2) modify ethanol fuel labeling to permit a single pump label for high-level ethanol blends. Although the FTC originally proposed defining "ethanol blends" as "a mixture of gasoline and ethanol containing more than 10% ethanol," the final rule abandons the term and replaces it with "ethanol flex fuels." The latter term, which RFA vigorously supported, helps match the language within ASTM and NCWM. RFA had argued that E15 should be exempt from the labeling requirements because it is already subject to EPA's labeling requirements. The FTC agreed, and in the final rule exempts E15. The final rule adopts tiered labeling for Ethanol Flex Fuels with options to provide fewer burdens to retailers. Specifically, retailers must post labels for mid-level blends with exact ethanol concentrations or may round to the nearest multiple of 10 (e.g., "40% ethanol" could have ethanol content of 35% – 44% by volume). For high-level blends (E51 – E83), retailers may post the exact percentage of ethanol concentration, round to the nearest multiple of 10, or indicate that the fuel contains "51% to 83% ethanol." Regrettably the final rule adopted the "Use Only in Flex-Fuel Vehicles / May Harm Other Engines" language that had been proposed by the FTC. RFA has strongly opposed this language and, in its comments to the FTC, stated it was "not aware of any credible evidence showing that misfueling has been a problem at flex fuel dispensers that simply advise the consumer" and, "the proposed language...does not appear to be based on scientific evidence and would undoubtedly deter some [flex-fuel vehicle] drivers from purchasing the fuel." Certification with PTDs will still suffice, as well as a letter or other written statement. This must include the date, your name, the other person's name, and the automotive fuel rating (ethanol content). In the case of ethanol flex fuels, you must possess a reasonable basis, consisting of competent and reliable evidence regarding the percentage of ethanol contained in the fuel for the automotive fuel rating. If have further questions, or need further assistance, feel free to contact Robert White at [email protected] or Kelly Davis at [email protected].