For Whom the Bong Tolls

Nov 26, 2018

By: Louis Terminello, Esq. and Brad Berkman*

The landscape of the brewing industry continues to shapeshift with more brewers entering the market with the variety of products on the rise.

As the number of craft-breweries in the US continues to skyrocket the brewer’s brethren are opting for new definitions of the meaning of “craft-brewery.”

The on-line publication Craftbeer.com reports there are 7,082 operating craft-breweries in the U.S. as of October 21, 2017. This represents an increase of over 1100 breweries since this time last year. They further report that at least 2000 breweries are currently in the planning stages and preparing to enter the market. Competition is clearly on the rise. Uniqueness of drink is the way to win the hearts and minds of beer drinkers everywhere.

Interestingly, the Brewers Association (BA) has announced that it is considering revising the definition of “craft-brewery” to reflect the diversification of beverage choices. The current definition is three pronged:

A craft brewery must produce less than 6 million barrels of beer annually.
They must be independent-not more than 25% of the craft-brewery may be owned by a non-independent brewery (an attempt at limiting the control by large brewers over small brewers).
A majority of its’ volume must be derived from traditional and/or innovative ingredients.

Brewbound, another industry publication, reports that the BA is considering altering the last definitional prong, expanding it to include non-traditional ingredients to be used in products like flavored malt beverages and hard seltzers.

The ramifications of this alteration of definition paves the way for unique and varying products but it also sends a clear and convincing signal. The bearded bunch are creaking the door open a bit and are preparing to slide cannabis infused beers through the opening.

Brewbound goes on to report that a BA survey found that in addition to mead and ciders, half of all brewer respondents reported that they would consider producing beer made with THC and CBD if the federal regulatory structure would change.

In this writers mind, “consider” is an understatement. Too much money is starting to shift from the drinks industry to the legal cannabis world. There is a strong nexus between the two and it is only a matter of time before the two industries are intertwined.

As we all know, more and more states are legislating the permissible recreational use of marijuana. THC and CBD and other derivatives are finding their way into edibles and drinks (in addition to being smoked) in many US jurisdictions. Most state medical and adult use regulatory programs prohibit the sale of products containing alcohol by licensees. That could change with federal legalization, and hemp-derived cannabis (including hemp derived CBD) is a whole different animal from a regulatory perspective. As reported in a previous blog entry US companies are investing in Canadian cannabis companies where recreational use is permitted country wide. Many of those companies are in the drinks business.

BOOM-enter former MillerCoors brewer and the creator of Blue Moon Belgian Style Ale, Keith Villa, who has entered the cannabis, infused beverage niche through the introduction of the brand Gainwave. The drink, as reported, is an alcohol-free malt-beverage with a 5mg dose of fast acting THC (per 10oz. bottle). The THC infused malt-beverage will be produced and sold in Colorado, Nevada and California. Producers and bottlers beware, however, THC is still a class I drug and its shipment across borders is a federal crime. But take note…the feds seem to be loosening up as well.

CBD is slowly finding its way into the lexicon of FDA approved drugs, particularly anti-seizure medications. More and more policy makers at the federal level seem to be listening and responding to the medicinal benefits of cannabis. But brewers beware; DEA and TTB may still come knocking at your door.

But the times they are a changing, sang the reported pot enthusiast, Bob Dylan. The bearded brewer rebels (and the suit and tie brewers as well) are making its collective voice heard.

But listen carefully-these words are a cautionary call to arms.

Brewers should not repeat the mistakes of early bootleggers, moonshiners and the corporate drinks producers. Crafting a tone of responsible and safe consumption in message and branding is paramount.

Join forces. Act collectively. Build a responsible platform. Promote the responsible consumption of THC infused brews. Respond to the folks who enjoy your products, stay in front of the ball with proper messaging and we all will enjoy the coming benefits. The new brewers manifesto must be written. We can help you craft the words and make the case.

The people they are a speaking and as Bob Dylan wote;

Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside
And it is ragin’.
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin’.

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