Fermented foods and beverages have become more popular in recent years because of their much-touted health benefits and also interest in old-world food-preservation techniques. Kombucha is one such traditional beverage being buoyed by consumers' desires to up their intake of probiotics, micronutrients and other funky stuff. But because alcohol is often a byproduct of fermentation, kombucha has come under close scrutiny from government agencies in recent years. And so U.S. Representative Jared Polis released a statement earlier this week defending the Colorado Kombucha industry and pointing out that he's pressing the Alcohol and Tobacco Tax and Trade Bureau (TTB) to lighten up when it comes to kombucha.

Because kombucha is a mysterious product to many, I spoke to a couple of experts to first find out how the beverage is made. Hannah Crum, president of Kombucha Brewers International (a trade organization with more than eighty current members around the world), explains that kombucha is an ancient drink made from tea that's fermented with both yeast and bacteria (brewers call it a SCOBY, or symbiotic culture of bacteria and yeast). The yeast consumes sugar added to the tea and produces both carbon dioxide and ethyl alcohol. The bacteria then converts the alcohol to acetic acid (among other acids), giving kombucha its distinct tartness.

Mike Burns, co-owner of Denver's Happy Leaf Kombucha, says that Happy Leaf is made with "tea, cane sugar, water, [and] kombucha culture (lactobacillus starter - similar to a starter you would use for sourdough bread)."

Both agree that a low level of alcohol is generally part of the finished product; Burns monitors the fermentation closely to ensure that the Kombucha he sells meets TTB regulations, which considers anything over .5 percent alcohol by volume to be an alcoholic beverage that falls under the bureau's jurisdiction (meaning the TTB can tax it). In California, GT's Kombucha (at twenty years, the oldest commercial kombucha maker) sells an over-21 version of its bottled drinks that still comes in well shy of even the lowest ABV beers, as well as an under-21 version. Because California grocery stores can sell beer and wine, it's not a problem for GT's to sell both products. Here in Colorado, we only get GT's under-21 version.

This is where Polis comes in. "The TTB have sent letters to kombucha companies telling them their product was 'unlawful' for not following the proper taxing and labeling regulations that govern alcoholic products and that they could be subject to fines," his statement notes. And so the congressman says he sent a letter to the TTB asking the agency to "provide some common-sense clarity and relief for the kombucha firms in Colorado and across the country.”

Crum points out that this isn't the first time kombucha has come under scrutiny for its minimal levels of alcohol. "In 2010, Whole Foods removed all [kombucha] products from its shelves," she points out. The product withdrawal lasted several months. In a 2011 article, Crum and co-author Alex LaGory (co-founder and chairman of the board of KBI) linked the origins of the grocery chain's actions to a consumer-protection inspector for the Maine Department of Agriculture who found kombucha bottles in excess of .5 percent ABV on Whole Foods shelves. That inspector suggested that "kids could get hold of this and get a buzz."

Polis feels differently. "Eight spoiled kombuchas are roughly the equivalent of one beer, but that doesn’t mean we should regulate it like we do alcohol – it makes absolutely no sense,” he writes in his letter to the TTB. And while the description of "spoiled kombucha" isn't quite accurate (levels over .5 percent ABV can occur as part of the standard brewing process and the drink is still quite refreshing, although hardly inebriating), the point is clear: Nobody's buying this stuff to get drunk.

Burns says he monitors the fermentation process at Happy Leaf to ensure that the alcohol level stays below the TTB limit, and adds that he's considering creating separate products (similar to what GT's has done in California). But right now he's concentrating on bouncing back from a setback caused by another government agency: A note on the Happy Leaf website states that "a few weeks ago the Denver Health Department decided to change their policy on kombucha and wanted us to pasteurize our kombucha. After further review, they have decided not to require us to pasteurize!"

"They were concerned that adding juice or fresh fruit to the kombucha made it unsafe," Burns explains. "We shut our tap room for two days, had to stop producing our bottle flavors and any flavor using juice. This went on for about two weeks. We have gotten the go-ahead to use pasteurized juice but cannot use unpasteurized juice in the City of Denver. We had to make flavors using herbs and flowers only during that period. They wanted us to pasteurize anything with fresh fruit or juice in it, but this would kill many of the benefits of kombucha."

The brewer says he agrees with Denver's health department that it's "better safe than sorry" when it comes to public health and safety, but he would like to see better communication and advance notice about the department's decisions. "We were shut down with no warning, and it almost put us out of business," he notes.

And while Happy Leaf has not run into any complications stemming from alcohol regulations, Burns says that the new testing requirements at Whole Foods add considerable expense. Testing equipment is extremely costly, so samples have to be sent to labs for analysis. "There is also a shortage of TTB-certified labs that can provide alcohol testing that is accepted," he points out. "Many labs do not even know how to get TTB certified."

According to Crum, one of the current goals of Kombucha Brewers International is to help come up with accurate, inexpensive and repeatable testing for alcohol levels so that commercial brewers and the TTB can work together to ensure that standards are being met. For kombucha lovers, the brew-ha-ha between producers and government agencies means an uncertain supply of their favorite brands, but even with that uncertainty, Crum points out that kombucha popularity and sales are at an all-time high and that the industry bounced back in a big way from the 2010 Whole Foods controversy. Kombucha Brewers International was founded less than two years ago with 44 starting members — mostly commercial kombucha producers — and has already doubled its membership in that short time.

