Alcoholic beverage formulas containing hemp seed derived food ingredients are eligible for formula approval by Alcohol and Tobacco Tax and Trade Bureau (TTB). Any other ingredient derived from any other part of a hemp and non-hemp cannabis plant will not be approved, e.g. leaves, flowers, stalk, etc., such as (CBD), delta9-tetrahydrocannabinol (Δ9 THC), and delta8-tetrahydrocannabinol (Δ8 THC).
TTB formula approval is required for any alcoholic beverages containing hemp seed derived food ingredients, even if the beverage it is not sold across state lines, e.g. sold in one state, see TTB Industry Circular 2019-1. Certificate of Label Approval (“COLA”) is required for any alcoholic beverage sold in interstate or foreign commerce. Additionally, the State of Texas requires product registration, which cannot be obtained without a TTB formula approval or TTB COLA label.
The reason why hemp seed derived ingredients are eligible for use in alcoholic beverage products is because they are Generally Recognized as Safe (GRAS) by the U.S. Food and Drug Administration. Any substance that is intentionally added to food or drink, is required to undergo a premarket approval process unless it is GRAS exempt. The FDA approved the use of hulled hemp seed, hemp seed protein powder, and hemp seed oil (“hemp seed derived food ingredients”) in food and beverage products back in December of 2018. The agency later explained that hemp seed derived food ingredients do not naturally contain CBD or Δ9 THC (unlike other parts of a plant which may).
The FDA recently expressed concern about the safety of long-term use of CBD, citing potential for harm to the liver, male reproductive health, pregnant women, and children. The agency has also sent out warning letters to manufacturers of CBD products.
Because the FDA has not approved the use of THC and CBD in food and beverage products, they will not be approved for a TTB formula or COLA label. Hence the proliferation of non-alcoholic seltzer, mocktail, and soda beverage products containing those ingredients.
As of the writing of this post, there are about a dozen alcoholic beverage products which have been approved for sale in the State of Texas. However, the majority of them are generally unavailable except for Austin based Lucky Stash Tequila, and Colorado High Hemp Vodka. Perhaps this represents an opportunity for independent small and medium sized industry members before larger players move in.
