Legal Requirements For Beer with Fruit, Spices and Other Specialty Ingredients

June 27, 2017

By: Jennifer L. Tsyn

With the warmer weather, many breweries may be producing, or considering producing, seasonal beers with flavors such as cherry or other fruits. As fall approaches, beers with pumpkin, apples, and spices are likely to be more popular. Studies have shown that the percentage of new beers hitting the market that are of the flavored variety has greatly increased in recent years.

With the increased popularity of flavored beers with ingredients such as fruits, spices, and other foods, brewers should be aware of the TTB requirements for such beers, as well as some New York State considerations to keep in mind.

The general TTB rule is that brewers must seek TTB approval of their formulas if the “fermented product”:

• Is treated by any processing, filtration, or other method of manufacture that is not generally recognized as a traditional process.
• Will have added flavors or other non-beverage ingredients (other than hop extract) containing alcohol.
• Will have added coloring or added natural or artificial flavors.
• Will contain added fruit, fruit juice, fruit concentrate, herbs, spices, honey, maple syrup or other foods.

However, the TTB has also created a very large exception to this general rule. It has adopted a long list of ingredients that are considered “traditionally used” in the production of beer and fermented beverages. These ingredients may be used without seeking formula approval from the TTB. Examples of these ingredients are apples, blackberries, blueberries, cherries, chocolate, cinnamon, cocoa, coffee, honey, nutmeg, orange, pumpkin, raspberries and strawberries, among many others.

Brewers should confirm to see if any ingredients it is considering adding to its product are listed in the TTB’s ruling, 2015-1. However, brewers should also be aware of several other requirements of the TTB exception to the formula approval requirement:

• Many of the ingredients must be used whole, puréed, juice or concentrated form; use of the ingredient in the form of essential oil, extract or syrup will likely require approval.
• All other brewing requirements will still apply (e.g. the percentage of fermentable materials that is malted barley or an approved substitute)

If a brewer is considering producing a specialty beer, it should also see the TTB’s guidance regarding listing the specialty ingredients on the label. The TTB no longer requires that the label specify if the ingredient was added before, during or after fermentation, but other requirements will still apply.

Brewers should keep in mind that, if formula approval is required, it can produce test product and even conduct consumer tasting before the formula approval is received. However, the product cannot be sold or marketed until the formula approval is received.

The New York Liquor Authority does not require formula approval, as long as the product continues to meet the state definition of a “beer.” However, breweries with a “Farm Brewer” license should consider the source of the specialty ingredient, and whether its use will impact the brewer’s ability to meet the required thresholds for ingredients grown in New York State.