Hey, Careful, Man, There's A Beverage Here! TTB, CBD, And The Production Of Beer

Author:Mr Derek J. Allen, Tyler J. Russell and Allen N. Trask, III
Profession:Ward and Smith, P.A.

So you brew beer? Cool.

So you want to brew a beer with cannabidiol? Even cooler. Don't know what cannabidiol is? That's ok. You probably know it as "CBD" - the highly popular cannabinoid that was recently legalized by the federal government, when it is derived from hemp.

Everyone in the industry is excited about the prospect of CBD infused beverages. It can potentially be used in all types of non-alcoholic and alcoholic products, including malt beverages. And the rush to use CBD in malt beverage products should not be surprising. Both hemp and hops, a critical ingredient of malt beverage products, belong to the same family of flowering plants called Cannabaceae. In a world of ever increasing craft producers and shrinking market share, many brewers view the use of hemp and hemp-derived products, like CBD, as an opportunity to expand both their customer and products base.

Regulation of Hemp, Generally

Hemp and CBD are generally regulated by the federal government, although individual states can opt into primary regulatory authority if they choose to do so. For more on the current state of hemp regulation in America, read this. Although the U.S. Department of Agriculture has been legislatively assigned primary regulatory oversight of our nation's cultivation and production of hemp, the Food and Drug Administration ("FDA") has also flexed its muscle to regulate the use of CBD in food, drug, cosmetic, and dietary supplement products under the Federal Food, Drug & Cosmetic Act (the "FD&C Act"). For more on that topic, read this.

Generally, and at least for today, the FDA has publicly stated that it is unlawful "to introduce food containing added CBD or THC into interstate commerce…" Real questions exist as to the enforceability of that position, but is it the position that the FDA has taken so far. And, as it turns out, "food" - as that term is defined in the FD&C Act - includes drinks and the components of those drinks. It also includes chewing gum! But that's not relevant here.

Regulation of Malt Beverages, Generally

Right now you're probably thinking "Ok, so malt beverages are drinks, and drinks are regulated by the FD&C Act, so my malt beverage products must also be regulated under the FD&C Act." That's a reasonable and logical thought! But… nope.

Labeling and product approval issues for malt beverage products are separately governed and regulated by the Federal Tax and Trade Bureau ("TTB") and the Federal Alcohol...

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