TTB Won’t Be Raiding Your Business Over Home-made Infusions… Yet

There’s been an exuberant amount of experimentation by bartenders in the recent years.  These newly minted “Mixologists” are doing gangbuster business in the art of the cocktail.  Along with the trend, there’s been a home/restaurant movement to infuse different liquors with a host of flavors.  Many of these infused flavors make it from restaurants through a process to where distillers finally catch on and decide to commercially produce something like “Bacon Vodka” that started as an home-mix by a few intrepid mixologists.

There’s been some question as to how the home/restaurant infuser may be treated by the federal government. The TTB has finally addressed the issue.  The opinion is a bit surprising… Yes, it’s not allowed under the regulations… but we’re not going to enforce those regulations… yet.

The full opinion is below.  Please note that this doesn’t mean that the state or local municipality won’t be taking action:

TTB Opinion on alcohol Infusions

At TTB, we are aware of the increasing trend of bars and restaurants infusing distilled spirits with fruits, herbs, and other nonalcoholic ingredients in order to make “infusions,” which are served on premises in cocktails.  The National Alcohol Beverage Control Association (NABCA) recently asked us for a statement of TTB’s position on the issue in order to assist NABCA’s state government members when developing their own policies regarding infusions.  We provided NABCA with the following response, which reflects our analysis of the application of certain federal laws to the making of infusions using taxpaid spirits.  In addition, we provided NABCA with our current enforcement policy regarding these activities, so that States could take that into consideration when applying their respective alcohol beverage laws and regulations.  We remind you that TTB is not precluded from taking enforcement action for any conduct that may jeopardize the revenue.

Under the Federal Alcohol Administration Act (FAA Act), rectifying or blending distilled spirits may only be lawfully done by a person with a TTB permit. (See 27 U.S.C. 203(b)). Additionally, under the Internal Revenue Code of 1986 (IRC), processing distilled spirits (including mixing) may be conducted only on the bonded premises of a distilled spirits plant by a person who maintains a registration as a distilled spirits plant proprietor. The mixing of taxpaid spirits for immediate consumption is not considered processing. (See 26 U.S.C. 5002(a)(5) and 5002(a)(6)(B)).

We understand that infusions are generally not for immediate consumption at the time the ingredients are mixed and would, accordingly, be subject to the IRC requirements. However, since taxpaid spirits are used in the process, TTB believes there is little risk to the Federal excise tax revenue. Additionally, because infusions are served on premises as or in cocktails, we do not foresee FAA Act packaging and labeling concerns. Under these circumstances, TTB exercises its enforcement discretion not to take enforcement action solely on the basis of violations with regard to a retail liquor dealer that mixes taxpaid spirits to produce infusions for on-premise consumption. This position does not apply to and TTB will continue to enforce prohibitions on processing with non-taxpaid spirits, bottling spirits, aging spirits in barrels, heating spirits, refilling of liquor bottles by retail liquor dealers, and with respect to any other conduct that may jeopardize the revenue.”

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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