Kevin N. Anderson, Regulatory Consultant
Hard seltzers are all the rage, promising low calories, low carbs, zero sugar and offering 5% or more alcohol by volume. Hard seltzer is a clear, bubbly, lightly flavored alcoholic beverage which consumers are craving. According to Nielsen, in 2018, hard seltzer sales were a mere $210 million and in 2019, sales sky rocketed to $1.2 billion with no signs of slowing. This year is on pace to crush the 2019 hard seltzer category sales total.
Breweries such as Bear Chase Brewing Company in Bluemont, VA and Bold Rock Hard Cider in Nellysford, VA (a winery) has joined in on the hard seltzer craze. As of July 2020, there were over 130 different hard seltzers registered in Virginia.
Generally speaking, the Federal TTB (Alcohol and Tobacco Tax and Trade Bureau), Alcoholic Beverage Control Agencies and FDA (U.S. Food and Drug Administration) all regulate hard seltzer products.
Hard seltzer is mainly produced from either a brewed sugar base or a brewed clear malt base. Depending on which is used determines the federal labeling and adverting requirements. Under the U.S. Internal Revenue Code, “IRC” for short, code 27 CFR Part 7, A malt based hard seltzer is considered a malt beverage which is subject to TTB Labeling and advertising regulations, while a sugar based hard seltzer is considered “beer” and is NOT subject to TTB COLA (Certificate of Label Approval) and advertising requirements.
What is a COLA you ask? A COLA (Certificate of Label Approval) is the approval of the physical label on a can, bottle, box, keg or other container holding an alcohol beverage at the federal level. There are various requirements such as the Surgeon General warning statement, city and state of manufacturer/bottler, and beverage class to name a few. A TTB COLA is required when the alcoholic beverage product will be sold across state lines. A brewery must obtain a COLA approval on malt beverages before they can sell outside of Virginia. The COLA approval process is required to ensure that wineries, breweries, distilleries and importers comply with federal regulations when designing labels and marketing their alcoholic beverages.
What exactly does this mean for your brewery?
If hard seltzer is produced using a clear malt base, TTB COLA and advertising rules apply. A majority of hard seltzer manufactured by breweries are produced using a fermented sugar base with no malt derivatives. When a sugar base is used, the product is no longer considered a malt beverage but a beer. In this case, the brewery is not required to obtain a TTB COLA to sell over state lines and advertising the product is not as restrictive.
However, this means that the sugar based hard seltzer would now be subject to FDA’s labeling regulations, 21 CFR Part 101. Yes, you heard that right. Your sugar based hard seltzer now falls under FDA labeling regulations and not TTB’s labeling and advertising regulations found in 27 CFR Part 7.
Yikes! Now that your hard seltzer falls under FDA labeling guidelines, things get a little sticky for brewers who are not familiar. Unlike the TTB, the FDA does not require pre-market approval of food and hard seltzer product labels. Your new FDA label will require a Nutrition Facts Label and statement of ingredients. If you do not have experience with FDA labeling, it’s highly recommended to hire a professional.
One final consideration, if you're adding flavor or color to any hard seltzer, which most brewers do, you are now required to obtain a TTB formula approval per 27 CFR part 25. Even if you only sell the hard cider product in your tasting room, you must obtain a TTB formula approval.
Disclaimer: Before you take any action based on this article please consult with an expert or regulatory official. Regulations and interpretations at the federal and state level are subject to change at any time.