On April 25, 2019 the Alcohol and Tobacco Tax and Trade Bureau (TTB) issued an Industry Circular titled, 2019 – 1 Hemp Ingredients in Alcohol Beverage Formulas. This information makes it clear that the TTB will rely on the U.S. Food and Drug Administration (FDA) for determinations on whether or not hemp ingredients, like CBD, may be included in alcohol. The FDA has reiterated that CBD is not a permitted ingredient in food or dietary supplements under federal law. This means that CBD is not currently a legal ingredient in alcoholic or non-alcoholic malt beverages. Yes, the federal government regulates nonalcoholic malt beverages as well.
A key takeaway from this circular letter is that certain alcoholic beverages may be legally marketed as containing hemp. However, those products may only contain hemp seeds or hemp seed oil. Both the TTB and the FDA have approved hemp seeds and hemp seed oil as permitted food ingredients. In simple terms, the TTB should approve your formula when using hemp seeds or hemp seed oil. Beers such as, Hemperor HPA, from New Belgium Brewing, use hemp seeds to comply with TTB and FDA restrictions.
In order for a food additive, such as hemp, to be allowed for use in alcohol, the TTB looks to the FDA for a "GRAS” Notice. GRAS is an acronym for the phrase Generally Recognized As Safe. Under sections 201(s) and 409 of the Federal Food, Drug, and Cosmetic Act (the Act), any substance that is intentionally added to a food or beverage is subject to premarket review and approval by the FDA, unless the substance is generally recognized among qualified experts as having been adequately shown to be safe under the conditions of its intended use.
In December 2018, the FDA completed its evaluation of GRAS notices for hulled hemp seed, hemp seed protein powder, and hemp seed oil. Hemp seeds are the seeds of the Cannabis sativa plant. The seeds of the plant do not naturally contain THC or CBD. The hemp seed-derived ingredients that are the subject of these GRAS notices contain only trace amounts of THC and CBD. The seeds may pick up THC or CBD during harvesting and processing when they are in contact with other parts of the plant. Consumption of these hemp seed-derived ingredients in malt beverages are not capable of making consumers "high."
Over the past few years, the TTB has sent out numerous Cease and Desist notices to alcohol manufacturers who have used CBD or unapproved cannabis products in the manufacturing of their malt beverages. As the use of hemp, CBD and other cannabis derivatives become more popular and more widely accepted at the state and federal level, stakeholders and the public have looked to the TTB and FDA for updated guidelines. Both the TTB and FDA are in the process of reevaluating their position on CBD use, which may lead to updated laws.