The United States Patent and Trademark Office (USPTO) wasn’t the only federal agency to release guidance on the use of CBD in food and beverages last week. On April 25, 2019, The Alcohol and Tobacco Tax and Trade Bureau (TTB) issued Industry Circular 2019-1, Hemp Ingredients in Alcoholic Beverage Formulas. Just as the USPTO will not issue CBD trademarks for food and beverages regulated by the FDA (for now), TTB will not approve formulas for CBD alcoholic beverages (for now).
We last posted about this topic here, prior to the enactment of the Farm Bill in December 2018. Many hoped that the Farm Bill would immediately open the door for CBD alcoholic beverages, and there have been reports that some brewers moved forward with the manufacture and sale of CBD beers right after the Farm Bill. But the feds have not given CBD alcoholic beverages the “green light.”
The Circular explains that TTB has consulted with the FDA to determine whether the use of hemp products in alcoholic beverages would violate the Food, Drug, and Cosmetic Act. Following that consultation, TTB determined that it will return for correction formulas containing hemp ingredients. The applicant can then resubmit the formula once it has in hand a favorable individual determination from the FDA with respect to its ingredient. (It is unknown how long this FDA approval could take and the likelihood of success as the FDA is in the early stages of evaluating the suitability of CBD in food and beverage products).
The Circular reiterated that TTB will continue to reject formulas containing ingredients that are controlled substances under the Controlled Substances Act (i.e., cannabis products with THC greater than 0.3%). However, it will continue to process formulas using ingredients derived from hemp seeds or hemp seed oils, as those particular products are generally recognized as safe by the FDA.
So it all boils down to waiting for further guidance from the FDA. An FDA hearing on the use of CBD in food, beverage, and cosmetic products is scheduled for May 31, 2019. For now, you’ll have to drink your beer and take your CBD separately.
For information regarding national and state liquor law matters or general manufacturing and distribution advice, please contact our Liquor Law, Licensing, Manufacturing, and Distribution Practice Group: Liquor Law Department Chair Theodore J. Zeller III, Esquire (firstname.lastname@example.org); David C. Berger, Esquire (email@example.com) for Pennsylvania and New Jersey retail and manufacturing licensing; or contact our offices at 610-391-1800.