A guide to labeling your non-alcoholic beer. Rather, to labeling non-alcoholic malt beverages, brews, near beer, cereal beverages or whatever you choose to call it… Please just don’t call it “beer, ale, porter, lager, or stout.”

by Ashley Brandt · July 7, 2020

What should you know about labeling your non-alcoholic beer? Well, the first thing is that depending on the the source of the fermentable sugars that gave you alcohol you’ve either got a non-alcoholic malt beverage governed by the labeling rules of the TTB or you’ve got a non-alcoholic beverage with labeling governed by the FDA (both still have Internal Revenue Code (IRC) requirements).

For example, take the difference between using sugar and barley. If you’ve derived the majority of your alcohol content from brewing a beverage with barley and, for instance, stalled-out brewing to obtain a near beer (something with under one-half of one percent (0.5%) alcohol) then you’ve got a malt beverage and the Tax and Trade Bureau’s regulations under authority derived from the Federal Alcohol Administration Act (FAA) apply. (27 USC 211(a)(7)):

“The term “malt beverage” means a beverage made by the alcoholic fermentation of an infusion or decoction, or combination of both, in potable brewing water, of malted barley with hops, or their parts, or their products, and with or without other malted cereals, and with or without the addition of unmalted or prepared cereals, other carbohydrates or products prepared therefrom, and with or without the addition of carbon dioxide, and with or without other wholesome products suitable for human food consumption.”

Conversely, if you’ve derived the majority of that low ABV from sugar – for example, like many kombuchas or hard seltzers – then you’ve got an FDA regulated beverage that may be a “beer” as that term is used under the Internal Revenue Code, but it isn’t a malt beverage nor is it a “beer” under the FAA. This distinction is a result of the FAA having a definition of malt beverage that doesn’t include an ABV requirement. There’s actually an old (2008, is that old?) TTB ruling that lays a lot of this out for you (2008-3).

In this piece we’re concerned with the labeling requirements for the non-alcoholic beer that is also a non-alcoholic malt beverage. We’ll cover the FDA labeling for a non-alcoholic beer (beverage) in another posting.

Please note – a malt beverage at less than 0.5% abv is still a malt beverage under the FAA and you’re going to be submitting your label for approval to the TTB to obtain a COLA and may even be obtaining formula approval, depending on the methods and ingredients/adjuncts.

So, what should you know for labeling your non-alcoholic beer? Well, first and foremost, you shouldn’t call it beer. Seriously. Under the TTB’s regulations regarding the naming of things (the “definitions” section at 27 CFR 25.11) “beer” has over 0.5% abv and a “cereal beverage” has under 0.5%:

“Beer. Beer, ale, porter, stout, and other similar fermented beverages (including saké and similar products) of any name or description containing one-half of one percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute for malt. Standards for the production of beer appear in § 25.15.”

“Cereal beverage. A beverage, produced either wholly or in part from malt (or a substitute for malt), and either fermented or unfermented, which contains, when ready for consumption, less than one-half of 1 percent of alcohol by volume.”

The federal regulations for non-alcoholic beer include some guidance on both the production and removal of the cereal beverage and the marking of it. These are found at 27 CFR 25.241 and 27 CFR 25.242.

As far as removal goes, provided the brewer ensures that the alcoholic content of the beverage won’t increase in the original container after removal from the brewery, then the near beer can be removed without tax payment.

25.241 Production.

Brewers may produce cereal beverage and remove it without payment of tax from the brewery. The method of production shall insure that the alcohol content of the cereal beverage will not increase while in the original container after removal from the brewery. The brewer shall keep cereal beverage separate from beer, and shall measure the quantity of cereal beverage transferred for packaging in accordance with § 25.41.

As far as markings and designations go, you can call this malt beverage, “cereal beverage” “malt beverage” “near beer” or some other distinctive name (Non-Alcoholic IPA perhaps). Since using the word “beer” in stand-alone fashion is prohibited, if you use “near beer” those words need to be in identical font, style, size, ink, etc. Also, if you’ve got it in barrels, then those barrels, if removed, must have a white strip across them with some magic language. The magic language needs to be on the packaging for your labels as well. That magic language is “Nontaxable under section 5051 I.R.C.”:

25.242 Markings.

(a) Designation. When bottled or packaged, cereal beverage may be designated “Cereal Beverage,” “Malt Beverage,” “Near Beer,” or other distinctive name. If designated “Near Beer,” those words will be printed identically in the same size or style of type, in the same color of ink, and on the same background.

(b) Barrels and kegs. A brewer may remove cereal beverage in barrels and kegs if the sides are durably painted at each end with a white stripe not less than 4 inches in width and the heads are painted in a solid color, with conspicuous lettering in a contrasting color reading “Nontaxable under section 5051 I.R.C.” The brewer shall also legibly mark the brewer’s name or trade name and the address on the container.

(c) Bottles. Bottle labels shall show the name or trade name and address of the brewer, the distinctive name of the beverage, if any, and the legend “Nontaxable under section 5051 I.R.C.” Other information which is not inconsistent with the requirements of this section may be shown on bottle labels.

(d) Cases. The brewer shall mark cases or shipping containers to show the nature of the product and the name or trade name and address of the brewer.

Under the regulations regarding describing alcohol content, you are also going to need to determine whether you’re “non-alcoholic” (less than 0.5% abv) or “alcohol free” (no alcohol) or perhaps even “low alcohol” or “reduced alcohol” (less than 2.5% abv).

Since we’re discussing “non-alcoholic” in this article, you should know that using the term “non-alcoholic” also requires that you provide the statement “contains less than 0.5 percent (or .5%) alcohol by volume” in conjunction with your use of “non-alcoholic” – this can be found at 27 CFR 7.71(e):

7.71 Alcoholic content.

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(c) Tolerances.

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(2) For malt beverages which are labeled as “low alcohol” or “reduced alcohol” under paragraph (d) of this section, the actual alcoholic content may not equal or exceed 2.5 percent alcohol by volume, regardless of any tolerance permitted by paragraph (c)(1) of this section.

…

(3) For malt beverages containing less than 0.5 percent alcohol by volume, the actual alcoholic content may not exceed the labeled alcoholic content. A malt beverage may not be labeled with an alcoholic content of 0.0 percent alcohol by volume unless it is also labeled as “alcohol free” and contains no alcohol.

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(d) Low alcohol and reduced alcohol. The terms “low alcohol” or “reduced alcohol” may be used only on malt beverages containing less than 2.5 percent alcohol by volume.

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(e) Non-alcoholic. The term “non-alcoholic” may be used on malt beverages, provided the statement “contains less than 0.5 percent (or .5%) alcohol by volume” appears in direct conjunction with it, in readily legible printing and on a completely contrasting background.

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(f) Alcohol free. The term “alcohol free” may be used only on malt beverages containing no alcohol.

Also, given that the IRC recognizes the names, ale, lager, porter, and stout in addition to beer in regards to taxable beverages with 0.5% or more ABV, the TTB’s beverage alcohol manual has also recognized that these names are to be used for the 0.5% and over category, so using those names on your label is a non-starter:

non-alcoholic beer labeling chicago liquor license attorney

Beverage Alcohol Manual – Classes of Malt Beverages

Additionally, since may craft brewers looking to produce low abv beers are doing so to also promote their low calories, please note that the caloric information and other nutritional information that a brewery chooses to place on the label must comply with the TTB rulings – 2004-1 and 2013-2.

So, to sum this all up for you.

Since this is still a malt beverage and you’ll be filing for a COLA, many of the regular Malt Beverage labeling rules apply such as net content, brand name, etc. Craft Brewers can find all those labeling requirements here.
The beverage can be labeled as a “malt beverage” a “near beer” or a “cereal beverage” or with some other distinctive name, but not as “Beer, Stout, Lager, Ale, Porter, Malt Liquor, Lager Beer” ;
If the designation “non-alcoholic malt beverage” is placed on the container, then the label must also state “contains less than 0.5% alcohol by volume” – this is the statement that needs to be utilized in conjunction with the phrase “non-alcoholic.” (See, TTB, Beverage Alcohol Manual Beer p. 1-7)
The phrases “low alcohol” and “reduced alcohol” can be used on malt beverages containing less than 2.5% alcohol by volume.
A craft brewer can choose to identify the caloric information and other nutritional information on the label but must comply with the TTB rulings – 2004-1 and 2013-2.
Near the UPC or somewhere on the can the craft brewer should note “Nontaxable under Sec. 5051 I.R.C.”

Now, those of you interested in alcoholic beverage law and the interplay with the First Amendment’s protection of commercial speech may be wondering what gives? Especially where the common sense understanding of the word “beer” or those other styles may include a beverage that is at 0.4% abv. Well, it doesn’t appear that any enterprising alcohol attorneys have taken the regs or the FAA to task over how one can advertise or label a proper malt beverage made using hops, barley and water. Perhaps with the growing trend to non-alcoholic beers, we’ll see a case soon.