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Are Alcohol Producers & Spent Grains Exempt from the latest FSMA?

By - September 22, 2016 | Alcoholic Beverage Law | Email Rob Pinson

Like any manufacturing process, the production of alcoholic beverages creates byproducts. After mashing, grains are lautered to separate the wort from residual grain. While the wort continues on in the production of the spirit, the leftover spent grains have no further use. But rather than throw them away, brewers commonly sell or donate the spent grain to farmers who use it as fertilizer or livestock feed.

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Spent Grain

This environmentally-friendly exchange has been a popular practice for centuries, and continues today. However, I still get lots of questions from newer breweries about spent grains, compliance issues, and oversight from the TTB or FDA. This confusion likely stems from the upheaval that the entire alcohol beverage industry went through during late-2013 early-2014 when the FDA proposed some new rules in an update to the Food Safety Modernization Act (FSMA).

Essentially, the FDA proposed rules to better regulate the quality assurance of animal food by requiring “that certain facilities establish and implement hazard analysis and risk-based preventive controls for food for animals.” This would place an extremely expensive and cumbersome burden on breweries across the nation to bring their facilities, processes, and staff all up to code.

To make a long story short: all the trade associations and congress members backed by breweries, wineries, and distilleries spoke out against the proposal, the FDA back-pedaled and added an exemption to section 116 of the FSMA for alcohol-related facilities, and the producers and consumers of spent grains all lived happily ever after. Coincidentally, the latest iteration of the FSMA has compliance deadlines starting this month – but it’s nothing that the manufacturers of fine spirits need to worry about any more.

I’d toast to that.

Robert Pinson

Robert Pinson

Robert “Rob” Pinson concentrates his practice in the areas of business law, tax law, estate planning, alcoholic beverage law and campaign finance law. As a Tennessee tax attorney, he has represented clients in stock and asset sales, tax audits and tax disputes. He also regularly goes before the Tennessee Alcoholic Beverage Commission and numerous Beer Boards on issues related to Tennessee alcohol laws. In addition, he has advised clients on tax strategy, estate planning, asset protection and campaign finance reporting.
Robert Pinson
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