Wow! That was my reaction to reading a recent marketing piece in a farm share newsletter. Apparently, a New York farm share has decided to allow a home brewer to offer “shares” of his home brewing bounty to members of the farm share. While this glows of an illegal sale by an unlicensed brewer, lets discuss the specifics.
First of all, if you are unfamiliar with farm share, let me indulge you. A farm share is similar to a co op. Members purchase a “share” of the farm’s crop with a subscription fee. The members are then entitled to receive a box of produce on a given interval (weekly, monthly, etc.). The fee for the share is typically derived from the costs of production, so that the farmers can be paid for their labor.
One particular farm share in New York City (i’ll keep that quiet), decided to allow a member to offer its home brew as a produce box “add on” service. Apparently, for $44, you get four deliveries of six-pack bottles. The beer is described below:
4. NEW! BEER SHARE – ADD-ON BY JUNE 1st!
One of our long-term XXXX members and talented beer maker is offering a XXXX Homebrew Share this year. Buy a share and receive craft beer home-brewed right here in XXXX. Members of the Homebrew Share receive 4 deliveries. Each homebrew share consists of either a six-pack of 12 oz. bottles or three 22-oz bottles. You will pick-up your homebrew shares at your designated XXXX pick-up location every 3 weeks starting June 29th / July 2nd.
The homebrew shares costs $44. That works out to $11 per six-pack – one dollar more than a six-pack of Coronas.
What kind of beer will be in the homebrew share? You will drink unique beer, made from original recipes. Beer that you cannot get anywhere else. All of our beer is bottle-conditioned and brewed in small batches, with the best ingredients, and using herbs and spices that make our beers unique and delicious. Today, we started the first beer for our shareholders – a chocolate pink peppercorn ale! Some of our past homebrews include: a caramel brown ale, a honey I.P.A., a sour-cherry stout, a chocolate-and-jalapeno dark ale, an oolong-and-orange summer ale, and a toasted-grain-and-maple-syrup ale. We have some new exciting recipes that we’ve been crafting over the past few months, and can’t wait to brew them for you!
Sounds amazing, right?! Well, its almost assuredly illegal.
The general rule is that most states allow you to produce beer for your own consumption – not for sale. Many states also allow you to share that home brew with your friends and others at home brew competitions.
But in New York there is no express provision that allows production of home brew. The law specifically provides a prohibition against the sale of beer, but no permission for home brewed beer. Washington, for example, has a specific provision that enables home brewing.
Under New York statute, Chapter 3-B, Article 8, § 100 provides that no person shall “manufacture for sale or sell at wholesale or retail any alcoholic beverage within the state without obtaining the appropriate license therefor required by this chapter.” The statute later defines “beer” as any “fermented beverages of any name or description manufactured from malt, wholly or in part, or from any substitute therefor.” At best, this vaguely permits home brewing for personal consumption, by not regulating it.
The question is whether the home brew share, discussed above, falls within the purview of this statute. I feel that it clearly does.
It is clear that these people are purchasing the beer and have no involvement in the brewing process. In fact, they do not know what is being brewed. Secondly, the brewer would need to prove that he derives no gain from these shares – meaning that he cannot even indulge in a free bottle. Finally, he is marketing the product by advertising publicly.
Even the most charged legal mind would have an immensely difficult time trying to convince a liquor control agency that this is not a sale. Even then, would it be worth it? The home brewer would likely have to turn over all records related to costs to ensure that he derives no gain. I believe that he would also have to show that the “share” members have some input and control over the brewing process, illustrating that they are also “brewing” with him. Of course, it is commonplace to brew collaboratively with others (I do it every time). But, this is above and beyond what the law already only tacitly permits.
While a novel idea, I believe that this will probably be shut down soon. 1000s of brewers across these great states have to go through the TTB and state procedures to sell their booze. So too, will this guy.