In the past months, concern has risen that new federal rules may cut centuries-long relationships brewers have had with farmers. A proposed U.S. Food and Drug Administration (FDA) ruling could put an end to the symbiotic partnership between brewers, who donate or sell their spent grain, a byproduct of the brewing process to farmers who use the grain as a secondary source of nutrition and hydration for their livestock. Local farmers have come to depend on the wet grain to sustain their animals, especially during the formidably hot Texas summers we down here in Austin know. As a result, farmers are able to keep their stock happy and hydrated and brewers dispose of millions of pounds of byproduct in a sustainable way. In 2012 alone, US breweries ended up with 2.7 million tons of spent grain as a result of brewing their beer.

The proposed rule lives as part of the FDA’s Food Safety Modernization Act (FSMA) which was created to increase the regulations and scrutiny placed on animal feed. If the rule takes effect, brewers looking to work with farmers would be obligated to maintain several layers or risk assessment, in-depth record-keeping, and expensive permitting that could cost a single brewery up to $13 million in one-time and reoccurring costs. All this so the brewers could provide farmers with grain that many currently give away for free. Many advocate that the rule should not apply to spent grain and for that reason, brewers should be exempt from these obligations.

Many Austin breweries have already spoken out about the rule and the impacts it would have on them.

Representatives from Independence Brewing Co. posted on Facebook on March 26th: “For years, we have worked with Calvin Jechow of Six J Ranch to pick up the grain that is left over after the brewing process to feed to his livestock. The FDA is considering rules that would require complex regulation and record-keeping (to continue this cycle.) We would like the FDA to include an exemption for breweries. The use of spent grain by farmers is a low-risk activity that has been mutually beneficial to brewers and farmers for decades. The alternative is to send the spent grain to landfills, wasting a reliable food source for farm animals and triggering a significant economic and environmental cost.”

The Texas Craft Brewers Guild also protested the proposed rule by submitting a letter on March 26th directly to the FDA on behalf of the 90+ Texas craft breweries it represents.

The guild states: “We understand that the Food and Drug Administration (FDA) is proposing to regulate spent grains under provisions of the Food Safety Modernization Act (FSMA), however, as alcohol beverage facilities (as defined in Section 116 of the FSMA) our member breweries are exempt from those provisions.”

The Beer Institute also filed joint comments with the American Malting Barley Association late last year in order to protect brewers’ rights to sell or donate their spent grain. The Beer Institute is the national trade association representing brewers of all sizes, beer importers and industry suppliers like hops farmers and can and bottle manufacturers. Members of the Beer Institute have been working tirelessly for more than a year with regulators, allied organizations, and members of Congress to present a strong economic and scientific argument proving that it is completely unnecessary for the FDA to add additional regulation to brewers’ spent grain and other by-products of brewing.

The Beer Institute states:

“We fully appreciate that FDA has a separate proposed rulemaking relating to animal food, and we do intend to respond to that rulemaking; nevertheless, because FDA included a discussion about “spent grains” in the current rulemaking, it is appropriate to consider whether there exists any compelling health or safety reason to regulate brewers’ spent grains in the first place. There is no such compelling reason to impose burdensome health or safety regulations on brewers. The mere act of separating insoluble particulates from the wort during brewing amounts to a separate manufacturing process and transforms an exempt activity into a non-exempt activity. … [this] proposed interpretation is flawed because it assumes that there is a compelling need to treat the natural by-products or residue of brewing as regulated food. The goal of brewing is not to manufacture beer and animal feed simultaneously. The goal of brewing is to manufacture beer. Spent grain comes into existence as the result of a necessary step in the brewing process, not as a discrete manufacturing objective. The same premium, high food-grade grain used to produce beer is the same grain that results in brewers’ spent grain. It makes no sense to exclude the handling and distribution of those grains while the brewery is using it to produce beer, yet deny that brewery the benefit of the exemption once the grain is spent. Setting the exemption aside mid-stream in the brewing process is illogical from both a regulatory and production standpoint. It is likewise illogical to impose regulation on an otherwise exempt activity simply because a third party (e.g, a farmer or rancher) sees value in the byproducts or residue of the exempt activity.”

The National Milk Producers Federation filed comments as well that expressly reference and include support for the Beer Institute’s comments.

Chris Thorne, Beer Institute Vice President of Communications said: “This regulation is onerous and expensive, but really it’s just unnecessary. There has never been a single reported negative incidence with spent grain.”

Thorne added, “We have had very positive conversations with the FDA and other concerned stakeholders making us cautiously optimistic.”

If you would like to voice your opinion on the FDA rule and the impacts it has on your craft beer community, or if you want more information about the rules, you can check out the Regulation.gov page for the rule. You can also check out The Beer Institute’s website for information and resources pertaining to their investigation submitted in November of last year to the FDA for review.

-Sarah