Who's in Charge of the Beer?
In the realm of brewing, the Alcohol and Tobacco Tax Trade Bureau, or TTB, evaluates things at several different stages:
- Operations approval
- Formula approval
- Beer label approval
Great American Beer Festival season is upon us and our turns our thoughts to beer. In recent years, discussions of brewing law have often revolved around trademark disputes, which have become increasingly contentious and numerous. But trademark disputes are like the early arrival of pumpkin beers: we need a break from all that. Instead, we are going to look at the decidedly less sexy—but equally important--topic of the TTB.
Tobacco Tax Trade Bureau
If you are a commercial brewery, the TTB must approve your operations before you can sell beer. Registration for a Brewers Notice application is now fully electronic: no more mailing original documentation. It’s also free. Apply in advance because you may not start brewing until the approval comes through and that will take about four months.
If your beer is being sold over state lines, the Tobacco Tax Trade Bureau must approve the label and may also require approval of the formula. Formula approval is not required for all beer. If your beer contains nothing more than barley, hops, yeast, water, and any of the specifically excepted ingredients, formula approval is not necessary. Adding apricots to your blonde ale, for example, would not take you out of compliance. But if your beer has coloring or flavoring materials in it, you will probably have to get formula approval. For example, Not Your Father’s Root Beer by Small Town Brewery is brewed with wintergreen and sarsaparilla bark, neither of which is exempted. It presumably required formula approval.
Up until last year, brewers had a much harder time getting fruit and spice beers into interstate commerce. But in 2014, the TTB broadened the pool of exempted beers by issuing a list of ingredients that would no longer trigger the formula approval requirement. The exemptions came at the request of the Brewers Association, which had petitioned the TTB to ease formula approval requirements. The BA argued successfully that certain ingredients were traditionally used in brewing and therefore should not require the additional step of formula approval. A list of the approved ingredients can be found here.
Any beer that is sold over state lines does require a Certificate of Label Approval (COLA). The requirements include:
- A government warning for any beer over 0.5% alcohol by volume;
- The brand name and class (e.g., ale/lager) of the beer, as well as its type (e.g., stout);
- The label must not be misleading. For example, a U.S. brewery cannot indicate it is selling a “Belgian” ale if the beer without language notifying the consumer that the beer was not actually produced in Belgium, such as “Belgian-style” or “Brewed in the United States.”
- The brand name, class, type, name and address of the brewery, and other content information must be at least 1 mm type size up to half a pint, and 2 mm beyond that.
- Keep in mind that what you do not put on your label is just as important. No flags, seals, crests, etc.; no false or misleading statements; and no obscenity.
If you are not engaging in interstate commerce with your beer, you may still need COLA approval from the TTB in order to get approved by your state agency, as is the case in Colorado. If you have any questions about Alcohol and Tobacco Tax Trade Bureau requirements, no matter where your brewery is located, Brandon Selinsky is available to help.
 This statement implies we were not already thinking of beer, a useful construct known as a “legal fiction.”