Legal Blog

Saturday SideBar: Making Beer


I used to think I wanted to make my own beer, but then I realized it takes too long and probably isn’t as good as my favorite off-the-shelf options. I do continue to be fascinated with the process though, and the number of small steps a brewmaster can take to set his or her product apart from the rest of the field. It’s microbiology, it’s chemistry, it’s just interesting, and as my neighbor and I like to opine, now is a great time to be a beer drinker with all the great options available out there.

There are a couple of things to consider at the outset that relates to quality and safety when it’s time to decide to make and sell your own beer. First, how do you know your brewing beer, and second, how do you know you can sell it to other people.

Under federal law, beer is a “malt beverage” as I mentioned last week. A “malt beverage” according to the law is essentially a fermented alcoholic beverage made from malted barley with hops, or their parts, and can contain other cereal or carbohydrates, added carbon dioxide, and “other wholesome products suitable for human food consumption.” That last part makes me think of the FDA, which is in charge of making sure beverages are indeed suitable for human consumption, which makes me think we need to be familiar with manufacturing quality controls before we start introducing beer into the marketplace.

Interestingly, a malt beverage is a malt beverage, even if it’s non-alcoholic, which means the Bureau of Alcohol, Tobacco, and Firearms (BATF) regulates labeling, not the FDA, although your beer still can’t be misbranded under FDA law. So basically, you have to be prepared to make a food-grade product and label it according to BATF regulations if you’re going to be shipping.

The BATF regulations have a fair amount in common with the FDA regulations when it comes to labeling. For one thing, you have to be able to tell who brewed the beer you’re buying at the store. Some states require alcohol content labeling of some malt beverages to varying degrees. You have to comply with state laws in that regard, so you need to know the laws of states where you are distributing. You have to declare certain additives and other substances. You have to disclose the presence of major food allergens.

BATF goes further in some ways. You can’t use a confusing brand name as to age, origin, identity or characteristics of the product, and there’s an interesting provision that allows people using brand names of foreign origin that were used for at least five years prior to August 29, 1935 (I’m interested to get the history on that), with certain qualifications.

Then there are several restrictions about the class of products being labeled. If you want to call something an “ale,” you had better know what that means. Oh, and did you know that “India Pale Ale” is a generic term?

 

 

For more information on this topic, please contact Scott Lloyd at slloyd@offitkurman.com.

 

ABOUT SCOTT LLOYD

slloyd@offitkurman.com | 301.575.0357

Scott Lloyd is a registered patent attorney who specializes in intellectual property counseling and commercialization work. He has served as a technology commercialization specialist and advisor to companies in a diverse array of markets, including biotechnology, pharmaceuticals, medical devices, food and beverage, specialty chemicals, technology, and engineering. In addition, Mr. Lloyd spent ten years as in-house general counsel to small and mid-sized companies, where he managed corporate matters and resolved commercial disputes in addition to intellectual property strategy, and now serves in the same capacity for entrepreneurial clients. He serves as counsel to small and mid-sized business owners seeking to implement growth strategies and succession plans.

While in house, Mr. Lloyd has also contributed to the successful formation of international affiliates of domestic businesses as well as a $400,000,000 business acquisition.

 

 

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing full-service law firms in the United States. With over 200 attorneys in 14 offices that stretch from New York to North Carolina, we represent privately-held companies and families of wealth throughout their business life cycles. Our mission is to provide our clients with “The Better Way” to grow their organizations, protect their businesses’ and families’ wealth, and resolve their most challenging legal conflicts. In addition to our quality of attorneys and breadth of legal services, Offit Kurman is distinguished by our unique operational structure, which encourages collaboration rather than internal competition. The same approach that makes our firm attractive to legal practitioners gives clients unlimited access to experienced counsel in every area of the law. Trust, Knowledge, Confidence—in a partner, that’s perfect.

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