There was a time not so long ago when listing beer ingredients on labels was simple—water, malt, yeast, hops—but the unbridled creativity of brewers today has led to an increasing complexity in those ingredient lists. Compounding the issue, an uptick in food allergen sensitivity among the general population along with an increase in lifestyle choices such as veganism have made consumers more careful than ever about checking ingredients in the things they ingest.
A congressional study found that 2 percent of adults and 5 percent of infants and young children suffer from food allergies, and around 30,000 people are admitted to the emergency room for treatment of food allergies every year. On average, around 150 people die every year as a result of reactions to allergens in food.
Still, many brewers remain behind the curve in disclosing potential allergens in their beer, and that may pose consequences in the legal realm as well as in the realm of public opinion. The good news is that proper labeling isn’t difficult, and the TTB offers clear guidance for those who do opt to list allergens on their labels.
Because beer is regulated by the TTB, and not the FDA, brewers have much more leeway in whether ingredients are listed. While Notice No. 62, issued in 2006, proposed rulemaking that would bring alcoholic beverage producers in line with requirements in the Food Allergen Labeling and Consumer Protection Act of 2004, the proposed regulation has not been enacted, and all labeling remains voluntary. In the meantime, interim rule T.D. TTB-53 offers clear guidance for which allergens should be labeled along with specific common language for identifying those allergens.
The eight major allergens, which Congress found to be responsible for 90 percent of all food allergy reactions, are milk, egg, fish, crustacean shellfish, tree nuts, wheat, peanuts, and soybeans. When labeling nuts, the individual nut variety must be named (for instance, “walnut, almond, pecan”). Similarly, specific fish and shellfish must also be named. In the event beer is made with a fish-derived fining agent such as Isinglass or fish gelatin, the interim rule allows for the generic use of the term “fish” on the label, and these processing agents (“incidental additives,” in FDA terms) must be listed if other allergens are listed.
It’s important to note that these allergen declarations are not governed by tests for threshold levels. Any use or presence of the allergen, or protein derived from the allergen, in the production process is cause for labeling it. While there are a few exceptions to this rule for highly refined oils and the like, as a general rule, all allergens used should be listed.
Per the TTB interim rule, the proper format for naming allergens is “Contains:” followed by a comma-separated list of all of the eight major allergens. This list must be complete, as the rule specifies, “If any one major food allergen is declared, all major food allergens used in the production of the alcohol beverage, including major food allergens used as fining or processing agents, must be listed.” Plural or singular is acceptable.
Allergy Vs. Intolerance Vs. Lifestyle Choice
In specific beer terms, the presence of lactose alone does not require labeling as “milk,” because food allergies are tightly defined (by the FDA) as immune system responses to proteins. Because lactose is a sugar and not a protein, it is classified as an intolerance and not an allergy. As a result, a brewer may label a beer as containing lactose without having to list major allergens.
Since lactose is derived from milk, typically as a by-product of cheese making, it is a significant concern to those who choose to live a vegan lifestyle. This form of strict vegetarianism eschews any consumption of animal-derived products, such as milk and eggs, and as such any beer made with lactose is not considered vegan. Failure to disclose the presence of lactose in beer may not constitute a legal failure, but may create ill will among vegan customers or at the very least cause staff to have to answer questions about its presence. All staff should be trained to answer such questions if products are not clearly labeled.
Industry Self-Policing to Avoid Regulation
The downsides of labeling allergens are obvious—erroneously omitting an allergen on a label that lists other allergens opens a brewery to potential legal action, incorrectly naming an allergen could slow down the label approval process, etc. So why bother labeling at all if it’s not mandatory? If the more philosophical answer of “because it’s the right thing to do” doesn’t resonate, consider these more pragmatic answers.
First, the absence of a legal requirement for labeling is not complete protection from litigation, and defending against litigation can be costly even if a brewery prevails.
Second, if a customer asks a staff member about the presence of an allergen and receives an incorrect answer or consumes a packaged beer that isn’t labeled for allergens and ends up in the hospital with a severe reaction, the public-relations optics can be quite negative for the brewery in question. Hiding behind an argument such as “we’re not legally required to list allergens” many not placate a social media audience seeking some sort of justice, and labeling is a way to get out in front of potential conflicts. More so, as conscientious entrepreneurs, few craft brewers want to send their own customers to the emergency room.
Third, proactive self-policing by the craft-beer industry limits the potential for high-profile incidents that might spur on mandatory labeling requirements. Mandatory labeling could have the effect of further slowing label approvals and could open breweries for additional liability in the event that allergens were not correctly identified. Self-policing is always preferable to regulation, and evidence of this can be found in the alcoholic beverage industry’s approach to self-regulating in areas such as marketing and advertising.
While labeling major allergens on packaging (or listing major allergens on taproom beer menus) is not a mandatory requirement, a voluntary and proactive approach to labeling by the brewing industry will go a long way toward keeping customers safe and happy while avoiding negative incidents that would invite further scrutiny or mandatory regulation.