Kombucha law can be tricky. This fermented tea beverage has been around for thousands of years, but it did not attract too much governmental attention until around 2015. The new attention is probably due to two things. First is the surge in popularity of this beverage. We have heard it’s one of the most profitable items at most Whole Foods stores, and the prominent placement seems to bear that out. Second is the realization that kombucha often has well more than 0.5% alcohol by volume, before, during or after production. This is the key threshold at the federal level, and also in many states. Kombucha can be a hornet’s nest buzzing with legal issues because, first of all, the specific product at issue needs to be classified. Is it beer, a malt beverage, wine, or just a conventional food/beverage? This inquiry directly impacts what permits, licensing, taxes, warnings, distribution system and labeling may be required.
By way of illustration, one of the very most popular kombucha brands as a matter of fact and/or law, is “beer,” according to TTB. As such, a TTB brewer’s notice is required. Excise taxes must be paid. A Government Warning statement needs to be on every label. The product should go through the three-tier system. TTB formula approval is required. TTB label approval is not required, though, in most cases, because almost all kombuchas lack the malt and hops typically required for anything to be deemed a “malt beverage.” Instead, the kombucha usually needs to comply with FDA (not TTB) labeling rules. We have deep experience with the kombucha issues set out here.
For more information about this topic, contact Robert Lehrman.
