Regulation

Feds Tell Kombucha Brewers to Pay Up After Tea Tests Above 0.5 Percent Alcohol

In August authorities issued fine letters to an untold number of kombucha manufacturers.

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Kris Krug/Flickr

Federal agents have resumed their bid to protect consumers from kombucha tea. Since at least 2010, government officials have been concerned that the fermented beverage could contain more alcohol than legally allowed for something not regulated by the Alcohol, Tobacco, Tax and Trade Bureau (TTB). Because of the fermentation process, kombucha is known to be slightly alcoholic, usually in the range of 0.5 percent—the legal limit for "non-alcoholic" beverages. But testing products on store shelves yielded slightly higher alcohol percentages the TTB alleged at the time, issuing warning letters to brewers and prompting some stores such as to temporarily pull kombucha from shelves. 

Now the feds are back at it, according to the Associated Press. In August, authorities issued fine letters to an untold number of kombucha manufacturers. "But this time around dozens of producers are resisting, and have asked for new federal tests to help them avoid running afoul of alcohol laws," AP reports. (During the TTB's first major crackdown on kombucha,in 2010, brewers didn't exactly roll over. Many commercial brewers were in talks with federal and state regulatory authorities, and these groups "suggested a different classification be used for naturally fermented food and beverage products that fall above the 0.5% threshold," Bryan Bertsch, founder of Deane's Kombucha, told me at the time. The TTB was not game.)

Kombucha has grown massively since the feds first crackdown. In the past two years alone, kombucha sales have increased nearly fivefold, according to retail analysts. On the anecdotal front, I'll note that I was recently at a child's birthday party on a military base in Tacoma, Washington, where I watched several large, burly army men drinking kombucha and discussing their favorite brands. 

Kombucha makers say the allowable alcohol limit of 0.5 percent is too low to even give someone a buzz—for comparison, a Miller Lite contains about 5 percent alcohol by volume—and point out that fruit juices often ferment on store shelves to similar alcohol levels as kombucha. They also note that because fermentation continues once the brew is bottled, products that pass legal muster when they leave manufacturers may grow more alcoholic when left on store shelves too long. 

One solution they propose is a separate testing process for fermented beverages like kombucha and kefir. Brewers "say the commonly used test to determine alcohol by volume (often listed as ABV on alcoholic beverages) doesn't account for naturally occurring sediment in kombucha, from bits of tea leaves to strands of yeast," AP notes. The TTB has allegedly indicated interest in such a test, but will meanwhile keep issuing fines when commercially available kombucha tests above the alcohol limit. 

Kombucha makers have at least one friend in federal government: Rep. Jared Polis (D-Colorado), who has written the TTB on behalf of brewers that were fined, asking the TTB to wait on issuing fines until the new alcohol test was in place. In his letter, Polis noted that it would take drinking eight over-fermented kombuchas to consume the amount of alcohol roughly equivalent to a beer. Regulating the beverage like alcohol "makes absolutely no sense," wrote Polis. The TTB denied Polis' request to wait on the fines.  

Authorities obviously have some incentive not to work with kombucha makers on a compromise solution. First, there's the fine money to be gleaned whenever any brands test slightly above the limit. Second, there's the possibility of regulating kombucha and fermented beverages as beer, wine, or spirits, which subjects kombucha to higher alcohol taxes and more regulations (including restrictions on where it can be sold).

In a March 2015 newsletter, the TTB issued a reminder that kombucha may be subject to regulation as an alcoholic beverage. "In the past, our tests of kombucha in the marketplace revealed that many of these products contained at least 0.5 percent alcohol by volume," it stated. "Regardless of the alcohol content of the finished beverage when it leaves the manufacturing facility, when kombucha contains 0.5 percent alcohol or more by volume at any time, it must be … subject to TTB regulation." In a September 2015 newsletter, TTB stated that kombucha containing more than 0.5 percent ABV was "subject to the Internal Revenue Code provisions that apply to alcohol beverages … must be labeled with the health warning statement required by the Alcoholic Beverage Labeling Act of 1988" and may also be subject to the Federal Alcohol Administration Act provisions as well. 

TTB isn't the only authority with its sights set on kombucha recently. Over the summer, the Denver Health Department considered requiring some kombucha to be pasteurized (a process that would kill the live cultures and enzymes, which are kind of the whole point of the drink). In May, agents with California Alcohol Beverage Control raided a new age church in Venice Beach and confiscated kegs of alcoholic kombucha. 

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