The Alcohol and Tobacco Tax and Trade Bureau (“TTB”) recently updated its guidance on inclusion of hemp ingredients in beverages containing alcohol. Here’s a summary:
• It remains TTB’s policy that it will not approve any formulas for alcohol beverages that contain ingredients that are controlled substances under the federal Controlled Substances Act.
• TTB is continuing to consult with the FDA on the use of ingredients derived from hemp.
• After consultation with FDA, TTB is returning for correction any applications for formulas containing “hemp” ingredients – other than ingredients derived from hemp seeds or hemp seed oil.
In short, TTB is following FDA’s position that it is unlawful to introduce or deliver for introduction into interstate commerce a food to which CBD or THC has been added. This topic is slated for a full day of discussion at the public hearing that FDA is holding on May 31.
For those readers who may be new to regulation of alcohol and how this relates to FDA, here’s the high-level:
• The Federal Alcohol Administration Act (“FAAA”) governs interstate commerce of wine, spirits, and malt beverages as defined in the statute. TTB is the agency charged with administering the FAAA.
• Unlike FDA, TTB requires that labels and formulas for products within its jurisdiction must be submitted prior to sale.
• Not all alcohol beverages fall within the FAAA, however, leaving FDA with jurisdiction over products that fall outside of the stated definitions.
• Transport in interstate commerce is required for either agency to have jurisdiction.
This isn’t the end of the story, though. As with all things related to CBD, state laws regarding inclusion of CBD in food products and alcohol are a patchwork, including some at the local level as we’ve written about here. Companies entering this space will want to sort through these complexities and follow the dynamic legal environment closely.