Selling Homebrew, Indiana

[Denny]

But homebrewers are much more fun to talk to....and quite a bit cheaper too!!

But lawyers will actually give you useful advice.

 

[Frige]

So if I give my neighbor a six pack of old sleepy time and he barfs all over my yard thereby fertilizing my tree and providing me a service just not a very good one. Is that considered bartering?

 

[ReverseApacheMaster]

So much bad, bad advice...

 

[Frige]

To be honest I feel all of us secretly would love to own a small commercial brewery. The main problem I see is funds. After touring a couple of small operations I dont think I would attempt it without at least a mill in disposable income. 10 gallons at a time will not cut it, and bottling by hand? Forget it. I spend a lot of time on my beer and I cant even keep up with my own consumption.

 

[Denny]

To be honest I feel all of us secretly would love to own a small commercial brewery.

Not me. Brewing is too much fun to turn it into a job!

 

[m_stodd]

Are these questions out of curiosity, or are people actually worried they're doing something illegal?

Do what you want, you probably do at least one illegal thing per week anyway

 

[the_bird]

Are these questions out of curiosity, or are people actually worried they're doing something illegal?

Do what you want, you probably do at least one illegal thing per week anyway

Nothing that would get me arrested. Unless I lived in Alabama, then I'd probably be in REAL trouble.

 

[JoshuaW]

First of all, I don't see anything in the Indiana code that defines who is the manufacturer of the beer. It certainly doesn't say anything about pitching yeast. So good luck with that.

Second, your analogy doesn't even make sense:

holding the rod :: catching a fish
storing the carboy :: brewing the beer

is the correct one.

Under federal rules the manufacturer is who pitches the yeast. You can "manufacture" wort unregulated.

If you are intent on this, have him buy part of the ingredients, then give him the appropriate portion of the finished product.

 

[zeg]

Under federal rules the manufacturer is who pitches the yeast. You can "manufacture" wort unregulated.

If you are intent on this, have him buy part of the ingredients, then give him the appropriate portion of the finished product.

Do you have a citation for this? Specifically, for the interpretation that if you, in your unlicensed home brewery, perform all steps except the physical act of pouring yeast into the fermenter, that you are not responsible as the manufacturer?

I'm skeptical (before even getting into the question of whether you could ever convince the authorities that this is what had occurred).

 

[TyTanium]

You need to talk to a lawyer, not homebrewers.

But lawyers will actually give you useful advice.

Yes. We can interpret the law however we want...doesn't matter. It only matters how courts have interpreted it and how regulators have enforced it.

 

[whoaru99]

You need to talk to a lawyer, not homebrewers.

But homebrewers are much more fun to talk to....and quite a bit cheaper too!!

Perhaps not in the long run of this situation.

 

[whoaru99]

Are these questions out of curiosity, or are people actually worried they're doing something illegal?

Do what you want, you probably do at least one illegal thing per week anyway

There we have it. I guess it's OK then since you've probably already broken some other law.

So if I get a speeding ticket on the way to robbing a bank, am I off the hook for bank robbery?

 

[Yooper]

To be honest I feel all of us secretly would love to own a small commercial brewery. The main problem I see is funds. After touring a couple of small operations I dont think I would attempt it without at least a mill in disposable income. 10 gallons at a time will not cut it, and bottling by hand? Forget it. I spend a lot of time on my beer and I cant even keep up with my own consumption.

Not me. Brewing is too much fun to turn it into a job!

I think "all of us" is a totally wrong statement. I"m with Denny. I LOVE being a homebrewer, and I love visiting my friends who are pro brewers. But I never want to brew professionally, ever. First, its WAY too much work for me. And I love brewing far too much to have it stop being a hobby and turning into a job!

There we have it. I guess it's OK then since you've probably already broken some other law.

So if I get a speeding ticket on the way to robbing a bank, am I off the hook for bank robbery?

Let's not argue about this anymore. We all know that there are times people break the law, by speeding or whatever. Telling someone to speed, or cheat or their taxes, or selling homebrew isn't what we are here for. Just because you might not get caught doesn't suddenly make something legal. You might not get caught doing 75 mph in a 45 mph zone, either. But that doesn't make it legal, and you still would pay the consequences if caught.

Trying to rationalize it is just ridiculous.

 

[Denny]

Darn, you're a smart lady!

 

[Frige]

Ok, ok a few of us LOL
By the way I own a small business and trust me the politics and paperwork will drown you until you lose your love for the work. I love getting out of the office and crawling around in attics, but these days there is more and more dealing with the pencil neck geeks and less actual work.

 

[d_jabsd]

Do you have a citation for this? Specifically, for the interpretation that if you, in your unlicensed home brewery, perform all steps except the physical act of pouring yeast into the fermenter, that you are not responsible as the manufacturer?

I'm skeptical (before even getting into the question of whether you could ever convince the authorities that this is what had occurred).

the federal TTB and your local ABC have tons of documentation. Bottom line- alcohol is a taxable and regulated product. Wort has no alcohol. Draw your own conclusions.

 

[Phunhog]

I think we can all agree that it is a grey area. I found this on the TTB website regarding Brew On Premise (BOP) http://www.ttb.gov/beer/beer-faqs.shtml#b1 Here is the grey area....nowhere that I can find in the law, in this case the Federal Code of Regulations, does it say what exactly what a BOP can/ can not do. In the above link it just states some guidelines that the TTB has come up with in regards to BOP. Maybe I am wrong here but...I think there is a big difference between a federal law enacted by Congress and some guidelines put forth by a federal agency. One is legally binding and the other???

 

[zeg]

the federal TTB and your local ABC have tons of documentation. Bottom line- alcohol is a taxable and regulated product. Wort has no alcohol. Draw your own conclusions.

Well, the point is that I'm not interested in my own conclusions, I want to know the conclusions of people who have the power to prosecute violations. I had a brief look for something authoritative, but could not find anything to support the idea of "pitching yeast" = "manufacturing."

And my own conclusion would be that you can't separate that single act from the entire production process. In a situation like that described, where one person's single act is to inoculate the wort with yeast, it's pretty clear that most reasonable people would say the manufacturer was the person who produced the wort and then managed the fermentation. The other guy was an assistant. Without evidence to the contrary, I would be pretty uncomfortable expecting the legal system to accept what is a ridiculous description of the process.

For Brew on Premises operations, they may use a definition like this, I don't know for sure. However, that is rather different from a homebrew setting. Businesses like that have to jump through hoops to begin with, and I expect they have to keep pretty meticulous records in case they're inspected or audited.

Edit: from Phunhog's link (thanks!) it looks to me like even BoP places can't just do everything except the pitch. Once it's pitched, it's the responsibility of the customer (i.e., manufacturer).

 

[d_jabsd]

I'm not a lawyer, but my interpretation is:
pitching yeast = making alcohol.

Anyone can sell ingredients, but selling the final product is illegal. Once yeast is pitched, you have a final product. Even if the yeast died and you failed, you still tried to sell the final product, therefore illegal.

example:

last weekend, the LHBS had a cider event. you could buy the base cider, but at that point the cider is just apple juice so the TTB and ABC have no interest. The LHBS was not selling hard cider. They were only selling ingredients and perfectly within the confines of the law.

 

[Phunhog]

Just wanted to add that I actually contacted the CA ABC regarding BOP licensing and regulation. Here is their response:
Some Brew On Premise (“BOP&#8221 businesses are licensed by our Department and some do not hold licenses. It depends on what the owner of the BOP intends to do. For instance, if the BOP owner merely rents space and equipment to adult persons who proceed to manufacture their own beer (similar to brewing beer at home) and also sells ingredients, bottles, caps, etc. then no ABC license is required. Generally, the BOP operator charges a fee for equipment rental and space occupied by the “home brewer.” Unlicensed BOP businesses cannot manufacture their own beer for sale, provide beer samples to customers, or otherwise engage in any activities that would require an ABC license.

That said, many BOP businesses that initially began as unlicensed ventures decided that not having an ABC license was much too restrictive. Therefore, many BOP operators applied for the Type 23 (“Small Beer Manufacturer&#8221 license. Although Type 23 licensees may exercise limited retail privileges, the Type 23 is considered to be a “non-retail” license. Here is a link to information about our non-retail licenses: http://www.abc.ca.gov/trade/NRLicPRivs.pdf. First scroll to the Type 01 license and then to the Type 23 license. Both are considered beer manufacturers and the only significant difference is how much beer can be produced annually.

License applications are handled by our local (district) offices. If you decide to apply for a Type 23 license you should contact the district office closest to where you will set up the manufacturing premises. You will find a list of our offices under the “Home” tab on our Web site: www.abc.ca.gov. A program technician or licensing representative in the district office can furnish information about the required forms, fees, etc. as well as answer questions about the licensing process.


It appears that there is NO federal or state law, at least in CA(..your state may vary), that governs BOP's operation. There are guidelines......but my point is that there is a HUGE difference between a law and an agency guideline.

 

[zeg]

I'm not a lawyer, but my interpretation is:
pitching yeast = making alcohol.

I think this is correct, in the sense that there is no restriction on selling malt extract or apple juice (aside from general food safety regulations).

However, once the yeast are pitched, the rest of the process would probably be considered as beer manufacturing. That's consistent with the TTB guidelines that say that the BOP should not help with fermentation / bottling.

Just wanted to add that I actually contacted the CA ABC regarding BOP licensing and regulation. [...] It appears that there is NO federal or state law, at least in CA(..your state may vary), that governs BOP's operation. There are guidelines......but my point is that there is a HUGE difference between a law and an agency guideline.

Thanks for getting that information. Based on what's been brought up here, I stand by my original opinion that you probably can't claim that a batch of beer belongs to your buddy simply because you let him pour in the yeast.

With respect to guidelines vs laws, it leaves us in a bit of a bind because there's uncertainty. IMO, it'd be prudent to be at least as conservative as the guidelines, simply because if the (probably unlikely) event of some sort of investigation or prosecution, you'll be in a better position arguing that you made a bona fide effort to comply with the best available information. It's no guarantee, but at the least you won't be starting off by digging yourself a deeper hole.

It's unfortunate that there's not more clarity on this issue. I can just imagine a perfect storm of misunderstandings where a get-together brew session in which everyone is honestly making their own batch winds up turning into a huge nightmare. On one hand, part of the reason it's hard to find solid answers is that homebrewers so rarely have legal troubles. On the other, it means we really don't know what we can count on if someone decides we're up to something nefarious...

Anyway, thanks, my curiosity is satisfied. I don't think, on a practical level, any of us is very likely to have legal problems, but I think it's important to find out everything we can just in case.

 

[Yooper]

In some states, legislation has been changed recently on homebrewing due to the vagueness of the laws and people wanted clarity.

As two examples, Oregon and Wisconsin.

In Wisconsin, "homebrew" was so narrowly defined by some lawmakers in their minds that it meant that "homebrew" couldn't be consumed outside of your home. That meant you couldn't take it anywhere, like even to a competition. They made a new law for the Wisconsin State Fair that allowed homebrew to be brought for the competition, but then went back last fall and wrote a law allowing homebrew to leave the person's home for certain events.

That would mean of course that no BOP would be allowed before then (I'm not sure it is, even now) because you'd be transporting "home"brew which is only allowed to be made and consumed in the brewer's own home! You couldn't legally take your homebrew to a friend's, to your own campsite, or to your boat. It was supposed to be consumed in the home, according to those that interpret the law.

In Oregon, they had something similar happen a couple of years ago. Denny would be the one who knows the details on that, but it took the AHA and other supporters to clarify some legislation on their state level.

So even if BOPs are allowed in California, they may not be in Wisconsin.

Another interesting thing- in Minnesota about a year ago they made a new law allowing "basement breweries", where you CAN sell homebrew in a certain small amount with that license. I don't know the details, but it is a clearly defined place with a clearly defined amount, and the license states that.

And of course in a couple of states, homebrewing itself is still illegal!

That's one reason we we never encourage anyway to "go ahead and put out a tip jar, no one will know" (wink, wink) or to be "clever" and say "They aren't buying beer- they are buying cups!". First, the enforcers of the law aren't mentally handicapped and won't believe your BS, and also we don't want to make it harder for homebrewing to become more accepted and legal everywhere.

Homebrewers already can have negative connotations out in the regular world, as moonshiners or bootleggers. Let's change that by obeying the laws, encouraging others to obey the laws, and bring changes that need to be made by looking professional and legitimate. The Buffalo Wild Wings ad is an example of the perceptions of homebrewers to some. Let's not encourage that picture in people's minds.

Many people find out I brew and ask me, "Is it safe? Can you go blind? How's it taste?". I'd rather they ask me, "Is your beer better than Summit's?"

 

[Chriso]

This entire discussion is precisely why I will not "take requests" and produce batches of beer intended specifically for a friend based on "what they want". (Perhaps with the exception of my mother. I'll take a request from her. After all, I sort of owe her, for the whole bringing-me-into-this-world thing.)

What I WILL DO, however, is tell that person what ingredients need to be purchased, and invite them over to brew beer under my guidance and using my equipment. Then there is no real question that THEY were involved in the brewing process, that THEY are brewing beer for themselves, even if it happens to occur under my tutelage or at my location.

Anything less crystal-clear than that, and I just really don't want to take the risks... I brew for the taps on my fridge in the basement, not to impress other people.

 

[libeerty]

Just wanted to add that I actually contacted the CA ABC regarding BOP licensing and regulation. Here is their response:
Some Brew On Premise (“BOP&rdquo businesses are licensed by our Department and some do not hold licenses. It depends on what the owner of the BOP intends to do. For instance, if the BOP owner merely rents space and equipment to adult persons who proceed to manufacture their own beer (similar to brewing beer at home) and also sells ingredients, bottles, caps, etc. then no ABC license is required. Generally, the BOP operator charges a fee for equipment rental and space occupied by the “home brewer.” Unlicensed BOP businesses cannot manufacture their own beer for sale, provide beer samples to customers, or otherwise engage in any activities that would require an ABC license.

That said, many BOP businesses that initially began as unlicensed ventures decided that not having an ABC license was much too restrictive. Therefore, many BOP operators applied for the Type 23 (“Small Beer Manufacturer&rdquo license. Although Type 23 licensees may exercise limited retail privileges, the Type 23 is considered to be a “non-retail” license. Here is a link to information about our non-retail licenses: http://www.abc.ca.gov/trade/NRLicPRivs.pdf. First scroll to the Type 01 license and then to the Type 23 license. Both are considered beer manufacturers and the only significant difference is how much beer can be produced annually.

License applications are handled by our local (district) offices. If you decide to apply for a Type 23 license you should contact the district office closest to where you will set up the manufacturing premises. You will find a list of our offices under the “Home” tab on our Web site: www.abc.ca.gov. A program technician or licensing representative in the district office can furnish information about the required forms, fees, etc. as well as answer questions about the licensing process.

It appears that there is NO federal or state law, at least in CA(..your state may vary), that governs BOP's operation. There are guidelines......but my point is that there is a HUGE difference between a law and an agency guideline.

There is absolutely no legal distinction between a law and a regulation. Laws give powers to regulators to create regulations, and they are just as enforceable as laws. A guideline is a different beast, but you are talking about regulations here for sure.

I am an attorney.

 

[Phunhog]

There is absolutely no legal distinction between a law and a regulation. Laws give powers to regulators to create regulations, and they are just as enforceable as laws. A guideline is a different beast, but you are talking about regulations here for sure.

I am an attorney.

Thanks for your response...nice to have someone on board with some legal experience. I understand that law and regulations are the same thing. My question is what is the difference between an agency regulation and an agency guideline? I have briefly looked over the Code of Federal Regulations (CFR) which contain the federal laws pertaining to beer in general and homebrewing specifically. I couldn't find any law/regulation pertaining to operating a BOP. What I did find were GUIDELINES published by the TTB regarding operation of a BOP. They contain what a BOP can/can not do. My question is..is a federal agency guideline legally binding?
You can find the link to the TTB FAQ here..http://www.ttb.gov/beer/beer-faqs.shtml#b1.. I am interested to hear your thoughts...