Hop Law

Brewer’s Guide to Federal Agencies

Registering your brewery with all the important state, local, and federal agencies can be a daunting task. Regrettably, there is little guidance out there to help you along the way. Nobody tells you which agencies you need to file with, and the agencies themselves certainly don’t seek you out until it’s far too late.

If you spend enough time in the industry, horror stories are relayed to you – there’s the one guy who failed to get any permits whatsoever and was shut down long enough that the business failed, or there’s another brewer who neglected to file brand registrations and had to pay thousands of dollars – these are powerful examples of why it is best to make sure that you get everything squared away well in advance.

This article aims to make that task less daunting. For now, I will take you through all the mandatory filings you must make with the federal government – The TTB, The IRS, The FDA, and The USPTO. In an upcoming post, I will take you through all the state agencies with which you must file.

The TTB (Tax and Trade Bureau)
The TTB is the federal agency you will likely be dealing with most frequently. Getting off the ground, they will certainly present your biggest headache on the federal level. Thankfully, for all the headaches the TTB causes, they have an online permitting process that operates relatively smoothly – at least as far as government agencies go. Sign up and poke around here. The bulk of your time will be spent on your Brewer’s Notice, which also requires a number of forms be filed alongside it. Don’t worry, I’ll go through all the big ones you need to worry about.

Brewer’s Notice
Your brewer’s notice is going to represent the bulk of your stress with the feds. This is a very involved process that will require detailed information about the business and its key players. You must start working on this paperwork as soon as possible because it will take a long time to gather and compile all the required information, and even longer for the TTB to process the paperwork. As of publication, average processing times for a brewers notice is just over four months. Current average wait times can be found here.

Personnel Questionnaire
For many people, this is the most frustrating part of the application process. Every officer, director, member, partner, and shareholder holding more than 10% control of the brewery must file one of these. The big things they ask for are: a complete record of your employment history for the past ten years; your criminal record; and the amount invested in the brewery along with the source of these funds (e.g. personal savings, a loan, etc.)

Environmental Information
The TTB is going to look for a detailed explanation of how your operations will be conducted. They want to know how your brewhouse is powered – e.g., is your brewhouse steam jacketed, and therefore you’re using a natural gas powered boiler, or maybe it’s direct fire, or maybe you’ve got an electric heating element. The TTB will want to know all of that. You will also need to explain what you will be doing with your waste, be it chemical waste or simply spent grain. They even want to know about noise management.

Supplemental Information on Water Quality Considerations
If you are like most breweries we have worked with, this will not be a difficult form to answer. The TTB here is mostly looking for whether or not you are discharging waste into navigable waterways. If you are not, it will be relatively simple. However, if you are, they are going to want detailed information on your waste treatment plans to ensure that you are complying with all appropriate regulations.

Legal Description & Diagram of the Brewery
The TTB is also going to want to see specifics on your physical plans with the brewery. Detailed drawings from your architect will be ideal here. However, the TTB is also going to want to see what the positioning of your brewing equipment looks like. They want a top down picture of where every tank goes, where your brewhouse goes, where the mill goes, and where any packaging operation will go. If it’s an integral part of the brewing process from beginning to end, they want to see it. They will also ask for a legal description of the brewery premises – this is the same thing as the legal description of your property that will likely be on file with your local government.

Assorted Other Forms
The above documents are going to present the largest nuisance. However, you must also submit any bylaws or articles of incorporation/organization. If you have any required trade name registrations or certificates to do business in a foreign state, you will need to provide them. You also must provide a brief statement describing the security of the brewery. Finally, if someone is submitting or otherwise communicating with the TTB (for instance, us) you must submit a power of attorney form to provide that other person with the authority to file documents on your behalf.

Label & Packaging Approval
If you plan on selling beer in more than one state, the TTB wants to make sure that all your packaging fits their guidelines. You must apply for a Certificate of Label Approval (COLA), which can take up to 90 days. The TTB has some very specific and very stringent guidelines as to what must be on a label as well as what cannot be. For instance, the label must include the name of the brewery, the type of beverage, and all applicable government warnings. It cannot contain any false, misleading, disparaging, or obscene content. You may think this is easy, but you’d be surprised at some of the rejected labels.

The FDA (Food and Drug Administration)
Compared with just about everyone else, your dealings with the FDA should be a walk in the park. You will simply need to file a “food facility registration,” which can be done online here. The form just asks for simple information like what products you will produce and what your contact information is. You have to renew this registration biannually.

The IRS (Internal Revenue Service)
If you have not already registered for an employer ID (EIN), you should do so immediately. This can be done online here. This is a relatively pain-free process, and if you need help the people at the IRS are generally very helpful in guiding you along. This number is important for identifying the brewery for pretty much any taxable thing you do, and can be considered substantively equivalent to a social security number for a business.

The US PTO (Patent and Trademark Office)
Many of you may have heard of the United States Patent and Trademark Office. It’s the office that registers patents and, for our purposes, trademarks. Brewers and distillers may find it difficult and, at times, frustrating, to obtain trademark registrations. As these industries become more crowded, there are fewer and fewer names and logos to go around. And to be barred from registration, your trademark need only be “confusingly similar” to another trademark. That standard is ambiguous and open to a wide array of interpretation. We have had success for clients overcoming initial (and even subsequent) refusals from the PTO by finding inconsistencies in the application of the “confusingly similar” standard, but we highly recommend getting ahead of these issues by applying for trademark registration before you start bottling or canning so that you don’t have to make a change to a product that already has name recognition. For more on this issue, see this link. And a quick side note, if you need to obtain label approval from the TTB and/or the state, do it before you claim to the PTO that you are using the trademark because if you are using the trademark without the proper approval, it can lead to a refusal by the PTO to register the trademark or a subsequent cancellation.  For more on this, take a look at one of our earlier blog posts.

Check back soon for the follow up on state agencies!