WHY YOUR SOUTH CAROLINA HOMEBREW IS PROBABLY ILLEGAL

I spend a lot of time on this blog explaining different beer laws in South Carolina. I’m always happy to answer anybody’s questions as best that I can to help clear up confusion. And with so many people out there who are interested in an industry that is subject to some very black, white, and incredibly grey areas, there is never a shortage of questions or confusion. But one of those most popular ones that I field is the legality of homebrewing and what is and is not allowed. So, let’s take a crack at it.

Is homebrewing legal?

Let’s start with the easy one. Yes, homebrewing is legal. On the federal level, it has been legal for quite awhile. When the 21st Amendment was passed, which repealed Prohibition in 1933, the legislation actually omitted the legalization of homebrewing. At the time you could make wine at home, though. It wasn’t until 1978 that President Jimmy Carter signed H.R. 1337, an Act that changed the tax code to provide an exemption for beer produced “for personal and family use and not for sale.”   This went into effect in 1979. But, that didn’t mean that everyone could enjoy the benefits of the new law. You see, the 21st Amendment leaves the regulation of alcohol to the states and as you might know, each state has very different alcohol laws. Some states have very specific laws, while others have vague or non-existent laws. The good news is that all 50 states have legalized homebrewing, with Alabama and Mississippi being the last to do so in 2013.

How much homebrew can you make? Do you have 2 or more adults in your household? If so, you can make 200 gallons per year. How much is 200 gallons? That is about 38 sixtel kegs. If you are the only adult in your household, or if you’re not ready to call yourself an adult but are over the age of 21, then you can only make 100 gallons per year. 100 gallons is the equivalent of about 19 sixtel kegs. Federal law actually allows for the age of 18, but all states have a minimum drinking age of 21. Why 21? In short, because states are subject to a 10% decrease in annual highway funding if they do not establish a minimum drinking age of 21.

What are the South Carolina specific laws?

I haven’t done the digging into the legislative history on when exactly homebrewing became legal in South Carolina. While there are no specific statutes that speak to homebrew, it appears that S.C. Code Ann § 61-6-20 is where we need to look. That section provides definitions for the state’s Alcohol Beverage Control Act. The Act regulates most kinds of alcohol. What isn’t regulated? Well, the Act says that “alcoholic beverages” are ANY “spirituous malt, vinous, fermented, brewed (whether lager or rice beer), or other liquors or a compound or mixture of them by whatever name called or known which contains alcohol and is used as a beverage. . . .” Seems to be pretty broad, right? Well, actually it provides several exceptions. The exceptions? Those would be wine made at home for home consumption and ANY beverage declared to be either non-alcoholic or non-intoxicating.

So, what drinks would be either of those? Water? Lemonade? Well, believe it or not, in its wisdom, the great state of South Carolina has defined non-alcoholic beverages to mean (1) ALL beer that isn’t over 6.5% ABV; (2) ALL beer between 6.5% ABV and 17.5% ABV if it is packaged in containers of 6.5 ounces; and (3) all wines that aren’t bigger than 21% ABV. What does all of that mean? Well, it means that in South Carolina, it is LEGAL to homebrew beers 6.5% and under, as well as ciders, meads, sakes, and wines under 21% ABV. The South Carolina Attorney General’s office weighed in on this several years ago, and found beers under 6.5% ABV to be covered. Doesn’t seem fair, does it? Well, it isn’t. But that’s South Carolina law, so what else is new?

Does that mean that you have to stop making your 7.5% IPA? While you are operating outside of the law, SLED isn’t going to come busting down your door because you made an imperial IPA. Just don’t try to sell it as we’ll see below.

How does South Carolina compare to neighboring states?

Well, most nearby states are pretty much the same. Homebrewing is legal everywhere, so unlike in other areas of beer law, nobody necessarily has that much of an edge. In other words, Deschutes isn’t going to choose North Carolina because the homebrewing laws are better. Or will it? Stay tuned. But, there are some variations between our neighbors. Let’s check them out:

GEORGIA: Hey, remember earlier when I mentioned that federal law allows you to brew up to 200 gallons per year at home? Do you also remember when I said that alcohol regulation is up to the states? Well, here is a perfect example. Until last year, Georgia only allowed you to made 50 gallons per year. That has since been changed to correspond to the federal law.

NORTH CAROLINA: Ah, North Carolina. Always our favorite state to compare ourselves to. And like many times, score another one for our friends up north. North Carolina law allows the production and transport of homebrew up to 15% ABV. If you want to make wine, mead, or cider, though, you’re going to have to use local ingredients for the majority of your concoction.

VIRGINIA: Like North Carolina, Virginia is also a beer law leader in the southeast. And on homebrewing, it also shines. Not only does it allow what federal law does, but it also allows the transport of up to 15 gallons of beer. Virginia law also legalizes homebrew competitions, which are legal under federal law.

TENNESSEE: Tennessee recently made some changes to its homebrewing laws. The state is now in line with the federal allowances for production. You can also serve your homebrew outside of your home. Competitions and tastings are also legal, so long as they are free. It currently only allows for up to 6.5% ABV, like SC. However, in 2017, that will change to 10% ABV.

Can I sell my homebrew and go to festivals and club meetings?

While everyone knows what I’ve probably already said, the more popular question is whether homebrew can be sold. To make this short and sweet, the answer is NO. Both Federal and South Carolina law are clear that you are not permitted to sell alcohol on which taxes have not been paid. Period. End of story. The government wants its money and you need to pay it. That’s why the licensing protocols can be so daunting. The government wants to use its police powers to watch over what is produced and what people are putting into their bodies. Untaxed and unregulated beer won’t fly with them. This is why the federal law puts the homebrewing statute in the tax code – because it is exempt from taxes.This to say nothing about how unfair that would be to brewers that are licensed.

But what about state excise taxes? Well, remember that the states are in charge of regulating alcohol, so if a state wanted to make you pay excise tax on homebrew, then it could do so. South Carolina only taxes alcohol that is commercially produced, so homebrewers are off the hook.

And what about festivals and club meetings? Again, South Carolina law is silent on these questions. However, federal regulations state that the use of homebrew at “organized affairs, exhibitions or competitions such as [homebrewing] contests, tastings or judging” is perfectly fine.

Are you being watched?

There was probably enough in this post to make homebrewers a little nervous. But, they shouldn’t be. Homebrewers are probably not being watched. But they need to be careful. I’m not aware of any homebrewer in the country or in South Carolina that is subject to a prosecution for producing more than 200 gallons of beer a year or for making beer beyond the ABV limits. That being said, please be smart. Don’t try to sell homebrew and don’t try to illegally produce beer. Getting licensed as a nanobrewery is much less expensive than paying the freight for the illegal production and sale of alcohol.

BROOK BRISTOW

Brook Bristow is a South Carolina-based lawyer, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, and intellectual property. Brook represents numerous breweries and brewpubs in South Carolina, and is author and editor of the Beer of SC Blog. You may reach him directly at beerofsc@gmail.com