Homebrewing in the Bluegrass State

The days of concocting bootlegged brews in a bathtub are finally behind the Commonwealth of Kentucky. At the very least there is now a legal alternative for those interested in crafting their own brews, but also seeking to maintain the integrity of their wash basins. Under the mission of “Necessity, Function, and Conformity” Kentucky Regulatory Statute 243.040(11) authorizes the Department of Beverage Control to grant a brew-on premises malt beverage permit.  Under this statute, on June 1, 2015, Public Protection Cabinet – Department of Alcoholic Beverage Control approved a regulation[1] granting “brew-on-premises” licenses to applicants interested in joining the fledgling craft brewing industry.

Brewing-on-premise is technically under the umbrella of homebrewing. The Kentucky Alcoholic Beverage Control defers to federal regulations on homebrewing, which to the untrained eye can give the impression that homebrewing within the state is illegal. Never fear moonshiners, homebrewing is very much legal in the Commonwealth, however it is classified differently than in other states where homebrewing is legalized via state statute. Thanks to the investigative skills of the Director of the American Homebrewers Association, who reached out to a representative of the Kentucky Alcoholic Beverage Control, there is a standard explanation for the confusion. The absence of a state regulatory measure is because “Kentucky’s laws regarding licensing for manufacture of alcoholic beverages are specifically oriented to production as a business endeavor for profit.” [2] There is no specific language in state regulations because Kentucky relies on federal homebrewing laws. In short: it is safe to assume that anything legal under federal regulation is good enough for the Bluegrass state.

Outside of the general federal regulations surrounding homebrewing, the main distinction between commercial breweries and brew-on-premise establishments concerns whether homebrewed beer can be sold. The federal statute allows for homebrews to be sold at “organized events” such as homebrew competitions. The Kentucky Alcohol Beverage Control takes a restricted view on the subject however. This means that outside of an event where judges are sampling homebrews, they homebrews can only be sampled at home and cannot be sold for profit. [3]

A brew-on-premises license permits establishments to provide customers with ingredients, equipment, and assistance for onsite malt beverage brewing.[4] The production of malt beverages on the premises of the licensed brew-on-premises establishment may be for personal or household use only.[5] The regulation defines “customer” as any person twenty-one years of age or older, however that is not the only stipulation.  While the average Kentuckian consumes a paltry 36.8 gallons of beer annually,[6] the regulation caps customers at an aspirational 100 gallons per year for a household with only one adult aged twenty-one years or older, and households with two or more adults at 200 gallons a year.[7]

The brew-on-premises license constructs a legal remedy for those interested in entering the craft brewing industry, without the hassle of committing to the commercial sector. A brew-on-premises licensee is required to not be considered a brewer, wholesaler, or retailer of malt beverages.[8] The strength of this license is that it provides the opportunity for those with a palate for craft brews, but none of the requisite tools or expertise to engage with the industry on a personal level. Pursuant to §3.2(a)-(e) a brew-on-premise licensee is allowed to offer a host of services to their customers:

-Moving containers of beer between storage areas;

-Cleaning, maintaining, and repairing brewing and bottling equipment;

-Maintaining climate and temperature control;

-Disposing of spent grains and waste; and

-Quality control, including laboratory analysis of malt beverages.[9]

-Filtering and carbonation of malt beverages.[10]

While this statute presents increased opportunity to localize the brewing process, it will not supersede existing restrictions around the distribution of alcohol in the Commonwealth.

For those looking into setting up shop as a brew-on-premises establishment as a clever means of moistening a dry territory, they will run into a problem. Pursuant to KRS 241.010(20), a licensed brew-on-premise establishment shall not reside in a dry territory.[11]

This statutory regulation became effective on April 28, 2015, giving about a year and half’s worth of potential data to examine. The Kentucky Alcoholic Beverage Control’s website does not list the number of permits in existence for the entirety of the state, and there does not appear to be a comprehensive list of establishments available. There is a veritable renaissance taking place in the world of malt liquor, and as usual Kentucky is at the forefront.

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

-Victoria Allen is a Junior Editor on MJEAL. She can be reached at vicallen@umich.edu.

[1] Ky. Rev. Stat. § 243.040(11) (West 2013).

[2] Gary Glass, Homebrewing is Legal in Kentucky, American Homebrewers Association: News and Culture (November 7, 5:04 PM), https://www.homebrewersassociation.org/news/homebrewing-is-legal-in-kentucky/.

[3] Gary Glass, Homebrewing is Legal in Kentucky, American Homebrewers Association: News and Culture (November 7, 5:04 PM), https://www.homebrewersassociation.org/news/homebrewing-is-legal-in-kentucky/.

[4] Ky. Rev. Stat. § 243.040(11) §1(2) (West 2013).

[5] Ky. Rev. Stat. § 243.040(11) §6 (West 2013).

[6] Beer Consumption by State per Capita, Beer Info, (November 7, 5:27 PM), http://www.beerinfo.com/index.php/pages/beerstateconsumption.html.

[7] Ky. Rev. Stat. § 243.040(11) §6(1)-(2) (West 2013).

[8] Ky. Rev. Stat. § 243.040(11) §2 (West 2013).

[9] KY. Rev. Stat. Ann. § 243.040(11) §3(1)(a)-(e) (West 2013).

[10] Ky. Rev. Stat. § 243.040(11) §3(3) (West 2013).

[11] Ky. Rev. Stat. § 243.040(11) §8 (West 2013).

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