On June 5, 2014 the Alcohol and Tobacco Tax and Trade Bureau (TTB) issued TTB Ruling 2014-4, exempting from TTB’s formula and pre-import approval (PIA) submission requirements beer made with dozens ingredients as well as beer subjected to wood aging processes. TTB now finds these ingredients and processes to be traditionally used in the production of beer. The Ruling stems from a Brewer’s Association Petition filed with TTB in 2006 with the assistance of McDermott Will & Emery. As the Ruling explains, TTB initially rejected the petition, but with continued industry interest and additional fact-finding the TTB has reversed its position. The Ruling includes an attached list of exempted ingredients and processes, as well as examples of acceptable label designations.
Materials that brewers (including for imported or PIA beer) can now use without the need for a formula include:
Fruits: Apples, apricots, blackberries, blueberries, cherries, cranberries, juniper berries, lemons, oranges, peaches, pumpkins, raspberries and strawberries.
Spices: Allspice, anise, pepper/peppercorns, cardamom, cinnamon, clove, cocoa (powder or nibs), coriander, ginger, nutmeg, orange or lemon peel or zest, star anise and vanilla (whole bean).
Other Ingredients: Brown Sugar, candy (candi sugar), chili peppers, chocolate, coffee (beans or grounds), honey, maple sugar/syrup, molasses/blackstrap molasses and lactose.
Wood Aging: Allows aging beer with plain barrels, woodchips, spirals or staves, as well as those previously used in the production or storage of wine or distilled spirits.
TTB determined that ingredients including honey, certain fruits, certain spices and certain food ingredients are part of the traditional beer making process. Industry members remain responsible for ensuring that all ingredients are suitable for food consumption in compliance with applicable Food and Drug Administration regulations and standards. TTB notes that when using brown sugar, candy (candi) sugar, maple sugar/syrup or molasses/blackstrap molasses in the fermentation of a beer, the beer label is not required to refer to these ingredients. Instead, the label may identify it as a “beer,” “ale” and so forth.
The Ruling finds that the process of aging beers in barrels (or with woodchips, staves or spirals from those barrels) that were used previously in the production or storage of wine or distilled spirits is a traditional process. This finding does not apply to the use of woodchips soaked or infused with wine or spirits for the sole purpose of making beer. Moreover, brewers must ensure that the use of previously-used barrels or chips will not add any “discernible quantity” of wine or distilled spirits to the beer. Labels do not need to state that the beer was aged in these types of containers.
TTB determined that the use of the ingredients listed in the Ruling will no longer require a statement of composition on the label that distinguishes between the exempt ingredients added before or during fermentation and those added after. A brewer or importer now has the flexibility to label the products in accordance with the trade understanding, and the precise wording is left up to the brewer. The designation must include the base product (beer, ale, etc.) and enough information to make it clear the product contains at least one of the exempted ingredients. A label can accomplish this by naming the ingredient that best identifies the product or the category (for example, “blackberry ale” or “fruit ale”). Previously allowed statements such as “ale with natural flavors” remain in compliance, as does the continued use of fanciful names. The TTB Ruling includes a list of adequate and inadequate designations.
The Ruling does not affect the validity of previously issued COLAs bearing statements of composition and a fanciful name according to TTB’s prior policy. To avoid processing delays, TTB has asked applicants to note in their application that they are requesting approval of a product made with an ingredient or label that is now exempted under the new Ruling.
Previously approved formulas remain valid. TTB will no longer accept or review formulas or PIA for products that no longer require a formula or PIA under the new Ruling.
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This action by TTB is a positive step to reduce the burden on brewers and beer importers. McDermott is proud of its role in achieving this result.