During the last BOP legal call and follow up questions, BOP General Counsel Ted Zeller received from multiple members, questions were raised regarding whether a brewery is permitted, under the Liquor Code and TTB regulations, to produce alcoholic cider, whether a COLA is required, and whether it must be registered with the Pa.L.C.B. After some research and a few telephone conversations with the Pa.L.C.B., we are pleased to have a full answer to the above questions. We should note that we believe the analysis below would apply to mead as well.
Initially, because alcoholic cider is a malt beverage under the Liquor Code, a Pennsylvania brewery is permitted to manufacture alcoholic cider under its brewery license. Unfortunately, the TTB does not take the exact same position as alcoholic cider is considered a wine under TTB regulations. Therefore, the holder of a brewer’s permit must apply for permission to manufacture alcoholic cider to the TTB. If you plan to manufacture alcoholic cider over 7%, you will need to apply for and obtain a basic winery permit from the TTB. However, if you plan to manufacture alcoholic cider under 7%, you will face a few less hurdles in the licensing and COLA process. Although you will still need to apply for permission to manufacture alcoholic cider from the TTB, you will have a simpler application process. On the winery application, there is an option to select that you will be making less than 7% alcoholic ciders. Once that permission is obtained, you will have permission from the TTB to produce alcoholic cider and your Pennsylvania brewery license will cover you with the Pa.L.C.B. (as long as the cider is less than 8.5% ABV).
COLA and Standards of Fill
COLAs for alcoholic cider are a little tricky. The TTB will not issue a COLA for alcoholic cider under 7%. However, that does not mean there are not labeling requirements that must be followed. The label should, at a minimum, list the following information:
• Brand name
• Class or type designation (e.g. “Hard Cider”)
• Name and address of the bottler
• Net contents of the container (see more information in standards of fill discussion below)
• Alcohol content
• Surgeon General’s Warning
If you produce alcoholic cider that is over 7%, you will need to obtain a COLA and will have labeling requirements (all of the above and possible additional requirements) to meet in order to do so.
Like obtaining a COLA, TTB regulations for wine standards of fill do not apply to alcoholic cider that is less than 7%. Generally, all containers holding wine must be filled and labeled in milliliters, as opposed to fluid ounces for beer. For example, even though it is not a requirement, many alcoholic cider producers will put “12 fl. oz/355 ml” to cover their bases. However, if your alcoholic cider is less than 7%, you can list your net contents in fluid ounces and follow the standards of fill that you use for beer. This is important for two reasons: (1) as indicated above, your label can list fluid ounces as opposed to milliliters; and (2) you do not have to worry about filling in a special sized container, whether it be a can, bottle, growler or keg. As with a COLA and licensing, if you produce alcoholic cider over 7%, you will need to list net contents in milliliters and follow the TTB regulations for standards of fill and size of containers.
Brand Registration for Cider
During my conversation with the Pa.L.C.B., we essentially worked through a way that the Pa.L.C.B. will accept alcoholic cider registrations because the TTB will not issue COLAs for products under 7%. To register alcoholic cider in Pennsylvania that is less than 7%, you will need to have a chemical analysis completed and send the report to Malt Beverage Compliance for registration. The chemical analysis should, at a minimum, test the Alcohol by Volume, Alcohol by Weight and Carbonation.
For alcoholic cider between 7% and 8.5% (the maximum ABV for alcoholic cider in Pennsylvania), the TTB will issue a COLA (and you will need to be a registered winery to do so). Due to the issuance of a COLA, for alcoholic cider in that range, brand registration in Pennsylvania can be completed by submitting the COLA without the chemical analysis.
UPDATE: Brand Registration for Beer
In discussing alcoholic cider registration with Malt Beverage Compliance, we were made aware that the PaL.C.B. changed its policies for brand registration late last year, without telling anyone of the change. We have been advised that starting in 2017, if you are selling beer at your brewpub or tasting room to non-licensees (individual customers) only, you do not need to obtain a COLA for brand registration in Pennsylvania. However, if you would go this route, your brand registration will be limited to brewery sales to non-licensees for on-premise sales only and, therefore, an enforcement action could be brought against your brewery for selling brands to licensees that are not properly registered.
Ultimately, if you plan on selling your beer to licensees (retailers, restaurants, breweries, distilleries, wineries, etc.) you will need to follow the previous requirements for brand registration. As a refresher, those requirements are to obtain a COLA (can be generic to apply for all of your brands) and file for registration with Malt Beverage Compliance. However, when utilizing a generic COLA, you must write in each brand name to register each different brand with Malt Beverage Compliance. Specifically, , if you get a generic COLA, you write in each brand name on the COLA, scan it, and upload each brand’s individual label to obtain registration for each brand.