We are deep into that part of the election when it’s impossible to escape the flood of frivolous news articles about what the candidates ate, exaggerated gaffes, or pretty much anything except actual policy. This week’s example: the fervor about the homebrewed beer that Obama occasionally breaks out on the campaign trail. Crowds chant “four more beers,” reporters get to write punny headlines like “Obama plays up love of beer to ferment coalition of the swilling,” and beer lovers in my Twitter feed gush that the president makes and drinks beer just like them, so, like, who cares about all his Bush-esque civil liberties abuses?
I reacted to the story with my usual political cynicism, but on further reflection having a sitting president publicly boast of his homemade beer represents a real advance in freedom. Though it’s hard to believe as I sit here typing in Portland, Oregon, where making a batch of homebrew with friends is a wholesome afternoon activity, brewing beer at home continued to be against the law in the United States long after Prohibition.
Portland-based homebrew advocate and local legend Fred Eckhardt wrote in his seminal A Treatise on Lager Beers about the state of American beer in 1969:
After Prohibition, it remained illegal to make homebrew (it still is) and so even then there was no light to be shed on the subject. Now more than 35 years after the end of Prohibition we are just beginning to explore the possibilities of homebrewing… There are almost no quality beers made in this country, so if you want good old-country style beer you must make it yourself. Even the German beers imported into this country are being made to the so-called American taste. Pablum and pap for babies. You actually can make beer just as good as the great European master brews in your home. This book is only a start.
Indeed it was. Nine years later, President Jimmy Carter signed legislation allowing people to brew reasonable quantities of beer at home for their personal use, no permits or taxes required. Today American brewers make some of the best beer in the world and many of them got their start making small batches in their garages and kitchens. (The quote above is excerpted in Nick Gillespie and Matt Welch’s The Declaration of Independents, which should be on everyone’s election year reading list.)
Prohibition casts a long shadow, however, and there are still many regulations that can trip up homebrewers. Homebrewing is completely illegal in Alabama and Mississippi. In other states archaic laws have banned removing homebrew from the home, shutting down beer competitions. In Oregon, such a law was amended last year after public outcry. Perhaps seeing the nation’s top elected official drinking beer made at his home will give added legitimacy to the practice and help remove these remaining barriers.
For what it’s worth, I’m not sure that even Obama’s beer is completely legal. [Update: See below for a response from the TTB.] As Dan Todd pointed out to me on Twitter, the beer is made by White House chefs, not the president himself. According to Reuters:
The beer, which comes in both a light and dark variety, is made by the White House chefs who use traditional beer-brewing methods. […] Taxpayers are not footing the bill for the beer, as both the cost of the equipment and the cost of brewing the beer is paid for by the Obamas personally, the official said.
Federal law states that homebrewed beer cannot be sold and that it cannot be produced by partnerships or corporations:
Any adult may produce beer, without payment of tax, for personal or family use and not for sale. […]
Partnerships except as provided in §25.207, corporations or associations may not produce beer, without payment of tax, for personal or family use. [The exception referred to is for operators of licensed breweries, who may take some of their product home without paying taxes on it.]
The Tax and Trade Bureau also has strict regulations for brew-on-premises facilities (BOPs), businesses that provide equipment and space to homebrewers, and the assistance they are allowed to provide to clients:
Proprietors and employees of BOPs may not:
Provide assistance to, or on behalf of, customers in the production, storage, or packaging of beer, such as:
— Fermenting mash,
— Adding sugar, CO2, or any other ingredients to beer,
— Filtering or bottling beer, or
— Providing physical assistance in the production, tank transfer, racking, or the bottling or kegging of beer.
I don’t know the specific arrangement the White House beer is brewed under, but having employees brew beer for one’s personal use seems possibly problematic. The president may also be stretching the meaning of “personal use.” When Obama gives his beer away to potential voters while running for office, does that still qualify? It would take one hell of a gutsy TTB agent to levy fines against his ultimate boss, but it sure would be amusing to watch the attempt.
Having a brewery in the White House also provides an opportunity to raise the question of why home distilling, which essentially requires only the additional steps of boiling one’s beer and collecting portions of the condensate, remains an illegal offense that can land one in prison. Merely owning a still in this country is suspect: It must be low in volume, can only be used for making purified water, essential oils, fuel, etc., and the TTB can demand from sellers of stills the name and address of any customer, no warrant required.
Our first president, George Washington, had a distillery on his property and underground distillers continue the tradition of making quality spirits at home. Unfortunately, making craft spirits legally requires leaping some major hurdles. Darek Bell, owner of Corsair Distillery in Nashville, Tennessee, discusses this in his extremely interesting book on distilling, Alt Whiskeys:
Unfortunately, only a few countries in the world allow legal home distilling. New Zealand, for example, is one of them. In the United States, distilling whiskey without a federal permit is a felony. This is no parking ticket. It is life destroying: five years in jail and a $10,000 fine.
Bell compares craft distilling today to craft beer in the 1980s. Small distillers are making excellent products but they’ve not yet achieved their full creative potential, hampered as they are by high start-up costs and regulatory requirements. Bell’s beer-inspired recipes provide a glimpse of what the future of small-scale whiskey might look like: Chamomile Wheat Whiskey, Huckleberry Moonshine, Bavarian Helles Whiskey. But trying these at home or experimenting with them before going commercial is forbidden, so the path that led to full-time careers for many homebrewers is closed to would-be spirits makers. Legal changes to bring home distilling into the open would help unleash this creativity.
This week’s many articles about Obama’s taste for craft beer have been inane, but they do show how far we’ve come destigmatizing and legalizing alcohol. If thirty years from now we have a president stirring Manhattans made with his special White House Whiskey, that will be an even greater sign of progress.
Update 8/23/12: I’ve been trying to reach the TTB for clarification on the legality of having paid employees brew beer for one’s personal use. I haven’t received a response, but I will update if and when I do.
Update 8/27/12: The Tax and Trade Bureau has responded to my request for clarification about the legality of hiring employees to make tax-free beer for one’s personal consumption. Short answer: This is an issue for which the TTB has never issued a ruling, but the law doesn’t preclude it.
Here’s the question I sent to Tom Hogue, who handles congressional and media inquiries for the TTB:
I’m curious if the TTB has ruled on the legality of having paid employees brew beer for one’s personal consumption. Without necessarily commenting on the White House beer specifically, would this qualify as legal homebrewing? If so, can ordinary citizens hire personal chefs to brew beer for them without paying taxes on it?
And here’s Tom’s response:
The answer to your question is generally speaking, yes. We have not issued a ruling on this issue, however, the regulations do not preclude a person from hiring a personal chef to brew beer for them, provided that they adhere to the regulatory provisions relating to personal or family use.
This is interesting for a couple reasons. First is that the White House brewery has brought up an issue that the TTB has never had to rule on before. Second is that while it’s illegal to sell homebrewed beer, one can apparently sell the labor that goes into making it. This opens up potential business opportunities. For personal chefs it’s an additional service they can offer and one more way they can differentiate themselves from the competition. It might even be possible to work as a “professional homebrewer,” traveling from house to house making beer to clients’ specifications. Who knows if there’s enough demand for that, but it’s an intriguing possibility. (There is at least one “Homebrew Guru” offering something like this in the form of home instruction.)
A caveat to the above: With no official ruling on the subject, these ideas are purely speculative. If more people start earning money making homebrew, the TTB may decide to rule and the selling beer vs. selling labor distinction might not hold up. But for now, at least, an enterprising brewer can claim a sitting president and former University of Chicago law professor as an example in his favor.