Photography by Don Jergler
Jim Furman is taking the high road in response to an action by the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB), which recently halted the sales of a line of beer made with cannabidiol (CBD) he was producing and selling.
Black Hammer Brewing in San Francisco had been selling the beer for more than a year when the federal regulator ordered the company to halt sales.
The primary reason behind the move wasn’t so much the CBD, it was because the trade bureau requires prior approval for non-standard beer ingredients.
“We didn’t have formulaic approval from the TTB,” Furman told Marijuana.com.
Black Hammer may not be the only producer selling beer with a cannabis-related ingredient being nailed for such a violation.
Just before the bureau ordered Furman to halt sales of his beer, it issued a notice reminding alcohol producers that the TTB will not approve any formulas or labels for alcoholic beverages that contain a controlled substance under federal law, including cannabis.
Thomas Hogue, the TTB’s congressional and public affairs director, said the bureau in late May 2018 released a frequently asked questions document in answer to the question: “Will TTB approve any formulas or labels for alcohol beverage products that contain a controlled substance under federal law, including marijuana?”
Hogue said the move was considered necessary to respond to an ongoing craft beer explosion that has beer makers trying myriad ingredients, especially in states where cannabis has been legalized.
“Obviously there’s plenty of interest in producing products that contain ingredients that may very well fall under the Controlled Substances Act,” Hogue said. “There’s definitely been increased interest.”
The short answer to the question of whether marijuana ingredients can be included in alcohol is: No.
“The Controlled Substances Act (CSA), 21 U.S.C. § 802(16), defines marijuana as all parts of the Cannabis sativa L. plant (and its derivatives) with certain specific exclusions,” the answer to the TTB’s recently issued FAQ sheet states. “Substances (such as tetrahydrocannabinols (THC), cannabidiols (CBD), or terpenes) that are derived from any part of the cannabis plant that is not excluded from the CSA definition of marijuana are controlled substances, regardless of whether such substances are lawful under State law.”
Formula approval from the bureau is required before a hemp ingredient is used in the production of an alcohol beverage, and the TTB will consult with the US Drug Enforcement Administration (DEA) to determine whether a hemp ingredient is allowable and will defer to the DEA’s interpretation of the Controlled Substances Act, according to the FAQ.
Hogue said the hemp policy has been in effect for roughly 18 years, however the bureau recently expanded the number of beer ingredients it allows to accommodate the growing number of craft beer makers.
“Cleary what is traditional has changed,” he said.
Not getting prior approval was the big misstep for Black Hammer’s line of CBD beer, which started with Toke Back Mountain. The beer line was being sold in the company’s San Francisco taproom, as well as through wholesale accounts around the Bay Area.
“It was one of our more popular beers,” Furman said.
Black Hammer sold nine different beers with CBD. Following Toke Back Mountain were incarnations like Blucid Dream, made with blueberry terpenes, and Hippy Hill. The latest in the line is Toke Back to the Future.
The hemp derived CBD used in the beer is a non-psychoactive cannabinoid that Black Hammer purchased through another company. The beer line was formulated to yield 5 mg of CBD per 10 oz serving, and while it’s questionable that drinkers could feel any effects, Furman said the beer does a great job of getting patrons more relaxed.
“We didn’t want a really large amount (of CBD), but we wanted to make sure that our guests can feel it,” Furman said.
The bureau is allowing Black Hammer to sell off the remainder of the stock, which Furman estimates is less than 50 kegs, all of which will be sold exclusively in the taproom.
He is in the process of applying with the bureau to use hemp and terpenes and revive the line so it will be in compliance with the TTB, while giving the beer its dank cannabis flavor.
All beers in the line with the CBD ingredient are imperial pale ales, which helps bring out the pungent aromatics drinkers enjoy, according to Furman.
“You don’t want to take a pilsner and have it smell like OG Kush,” he added.
Furman said Black Hammer has just begun getting the paperwork in order to submit the formula for approval, a process that’s new to him.
“We’ve never had to submit a recipe before,” he said.
When the new line is out, customers won’t get that “enhanced feeling,” that drinkers reported feeling, but the beer will retain the same flavor and aroma.
Plans are for Black Hammer to roll out the new beer line as soon as the application process is completed.
“By the end of the year we hope,” Furman said.