Over the past several years hard seltzers have become one of the fastest growing and most popular types of alcoholic beverages available. Due to this increased demand, many breweries have explored beginning to produce seltzers in addition to their core beers. Before jumping into producing hard seltzers, breweries should be aware of a number of regulatory requirements. This article focuses on both Federal and State of Maine regulations that may be applicable to the production of a hard seltzer by a brewery.
What Type of Base Alcohol?
Generally, there are three types of bases that seltzers use: (1) malt-based; (2) sugar-based; or (3) grain neutral spirit (GNS). The compliance requirements differ depending on what base a brewery decides to use to produce its seltzer.
A Federal Tax and Trade Bureau (TTB) Brewer’s Notice allows a brewer to produce a seltzer that is either malt or sugar-based. However, TTB regulations do not allow a brewery to utilize GNS in its process.
If a brewer decides to produce a product using GNS, it will likely need to apply to be deemed a distilled spirits plant with both the TTB and State of Maine. A product using GNS also has a higher federal tax rate. The state excise tax is also higher than beer, if above 8% ABV. Additionally, if the product is made with GNS and is above 8% ABV, it must be distributed by the State as a distilled spirit as opposed to a “low-alcohol spirits product” which can be distributed by beer and wine wholesalers in Maine.
The labeling and advertising requirements that apply to the product differ depending on the type of seltzer a brewery produces. There are two key definitions that must be understood by any brewery in order to determine which regulations apply.
The first is “malt beverage” as defined by the Federal Alcohol Administration Act (FAA Act):
“a beverage made by the alcoholic fermentation of an infusion or decoction, or combination of both, in potable brewing water, of malted barley with hops, or their parts, or their products, and with or without other malted cereals, and with or without the addition of unmalted or prepared cereals, other carbohydrates or products prepared therefrom, and with or without the addition of carbon dioxide, and with or without other wholesome products suitable for human food consumption.”
The FAA Act grants broad authority to the TTB in regulating the labeling and advertising of “malt beverages” as defined in the FAA Act.
The second definition is that of “beer” as found in the Internal Revenue Code of 1986 (IRC):
“beer, ale, porter, stout, and other similar fermented beverages (including sake or similar products) of any name or description containing one-half of 1 percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute therefor.”
When comparing these two definitions, all malt beverages are considered beers but not all beers are malt-beverages. Both malt and sugar-based hard seltzers are considered beers, but only the malt-based seltzers would be considered “malt beverages.” For more information regarding the distinction between “malt-beverages” and “beers”, see TTB Ruling 2008-3.
For malt-based seltzers, all labels and advertising would need to comply with the TTB requirements, and, if the seltzers are being sold across state lines, brewers will need to apply for and receive a Certificate of Label Approval (COLA). A COLA ensures that the label meets all of the advertising requirement of the TTB prior to the product being sold.
Alternatively, for sugar-based seltzers, the TTB requirements would not apply and a COLA would not be required; however, the seltzer would fall under the labeling jurisdiction of the Food and Drug Administration (FDA), which does not grant pre-approval for labels and generally requires a statement of ingredients and nutrition information. Since there is no pre-approval process for FDA labeling requirements, the brewer must ensure that the label is compliant before going to market or it may face penalties for non-compliance and be required to recall the products.
A GNS product would also be subject to TTB labeling and advertising requirements as a distilled spirit.
While a COLA is not required for products that do not cross state lines or for products that are not considered “malt-beverages,” this exemption does not apply to formula approvals. Typically, any product that is made with any flavoring, coloring, or sweetening ingredient requires a formula approval.
Given the many differences between the regulatory process of beer production compared to hard seltzer production, we strongly encourage all breweries contemplating entering the hard seltzer market to consider working with legal and compliance experts to ensure that the product meets all regulatory labeling and advertising requirements.
Brandon Mazer is an attorney at Perkins Thompson. His practice areas include federal and state alcohol manufacturing and distribution law. Brandon can be reach at 207-774-2635 or by email.