Four consumers — three underage — filed a lawsuit alleging Tribucha Inc. misled them into buying non-alcoholic kombucha that contains twice the alcohol permitted for non-alcoholic beverages. 

The 30-page class action lawsuit contends Tribucha has been sold to “unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcoholic consumption may pose a grave and immediate safety and/or health risk.” The lawsuit says the North Carolina-based brand has a small disclaimer on the label stating that Tribucha “contains a trace amount of alcohol,” but an investigation proved otherwise. Plaintiffs used a lab accredited by the Alcohol and Tobacco Tax and Trade Bureau (TTB) to test the kombucha and found it is over 0.5% alcohol by volume, which classifies it as alcoholic.

The complaint continues: “Because Tribucha Kombucha does not include any warnings concerning the significant presence of alcohol, consumers, including Plaintiffs, are led to believe that the products are safe to consume when driving a car, operating machinery, and taking with potentially a deadly cocktail of incompatible medications.”

In 2010, Whole Foods and other retailers pulled kombucha off shelves as the TTB investigated whether alcohol levels in kombucha were higher than what was printed on the label. And since then, consumers — and even other brands — have filed lawsuits against various kombucha brands, alleging alcohol levels higher than indicated.

Kombucha can keep fermenting after it’s made, as the yeasts continue to eat sugars. Under current law, if kombucha leaves a processing facility at 0.4% ABV, but increases to over 0.5% by the time it’s placed on grocery store shelves, the brewer would have to pay federal alcohol taxes like a beer brand.

Kombucha producers fear constant repercussions from this law, says Hannah Crum, co-founder and president of Kombucha Brewers International (KBI), the trade organization for kombucha brewers.

Earlier this year, South Carolina’s Department of Revenue (DOR) categorized all kombuchas as alcoholic beverages. The state’s regulations set a maximum alcohol content for beverages but no minimum, so any fermented beverage with any alcohol content would be considered alcoholic. Since kombucha fermentation produces a trace amount of alcohol, a brewer would need to apply for a state alcohol license, and kombucha could not be sold to anyone under the age of 21. It contradicted the U.S. legal definition of an alcoholic beverage.

After kombucha industry leaders contacted the state’s DOR and the South Carolina Retail Association (SCRA) to share advice and resources, the regulation was amended to exempt kombucha. KBI’s leadership and legal counsel, along with producers Buchi Kombucha, GT’s Synergy Kombucha, Health Ade, Humm and Brew Dr. were involved.

Pending in Congress is the KOMBUCHA Act, legislation that would make kombucha beverages exempt from excise taxes intended for alcoholic beverages. The act proposes to raise the alcohol by volume (ABV) threshold for kombucha from its current level of 0.5% to 1.25%.

Reads a statement from KBI on the act: “These laws were never intended to make kombucha subject to taxes designated for beer. Passing the KOMBUCHA Act under the next appropriations bill will relieve this unnecessary burden on kombucha brewers. Only kombucha above that level (1.25%) will be subject to federal excise taxes when this Act becomes law.”

KBI has actively lobbied for the bill’s passage. Big kombucha brands (GT’s and Health-Ade) have actively supported the bill.

Cooking isn’t limited to only making the dishes of one’s ethnicity. The cultural identity of that food becomes murky when it gets transactional. Commercializing a food without respecting and honoring its history and tradition is inauthentic, damning to immigrant producers and threatens to erase traditional foods.

“Someone with more power or dominance, they can create their own kimchi – that doesn’t have any resonance to its tradition – and get it on the shelves of Wal-Mart and make it commercially successful. I don’t have that opportunity because I’m a woman, I’m Korean, I’m a minority and I’m just trying to tell the story about kimchi in my way,” says Lauryn Chun, founder and CEO of Mother-in-Laws kimchi. Chun’s kimchi comes from her mother’s recipe used in the family restaurant in California, Jang Mo Jip. “It’s my heritage of food that I enjoy sharing with Americans.”

Chun’s experience is similar to many BIPOC producers. It’s difficult for minority producers to compete with the white-owned brands that often have more money to launch a food company and receive preferential treatment by retailers for store placement. 

“When you turn it into a business and you’re profiting as a company, we need to be more sensitive and more deliberate in how we give credit to people,” adds Robert Danhi, chef and co-founder of Flavor360 Solutions (and a TFA Advisory Board member)

Speakers discussed the wide range of issues related to traditional foods in a panel during TFA’s conference FERMENTATION 2022 titled “Traditions of Fermentation, Cultural Appropriation and Diversity.” Panelists included Chun, Danhi, Beverly Kim (chef and owner of restaurants Parachute and Wherewithall in Chicago), Kheedim Oh (founder of Mama O’s Premium Kimchi and TFA Advisory Board member) and Ismail Samad (founder of Loiter and Wake Robin Foods). The discussion was moderated by Josephine Wee (assistant professor at Penn State University and a TFA Advisory Board member).

Do Cultures Own Their Foods?

“There’s appropriate appropriation,” says Oh, whose Brooklyn-based kimchi brand is also based off the recipe of Oh’s mother, a Korean American. “Some of these brands, is what they’re making even kimchi? Kimchi is such a popular buzzword now. But it’s an unfair advantage when you’re competing with me and Lauryn to get your kimchi on the shelf and it’s very loosely kimchi.”

Brands are coming to retail with condiments labeled kimchi that are far from the traditional Korean condiments. They’re skimping on ingredients, like not using traditional Napa cabbage and opting for cheaper produce varieties. Though there’s hundreds of versions of traditional kimchi, some brands are veering too far to gain sales (Oh joked about a raspberry cheesecake kimchi).

“We need to change the narrative from appropriate to appreciation, celebration and preservation,” Wee adds.

Should a culture own a fermented food? Like Koreans just selling kimchi? The panel didn’t agree with that notion. But Samad points out a culture’s food is taken away from them when it’s exploited. 

Through his nonprofit Loiter, Samad tackles the effects of systemic racial and economic injustice.  He’s helping the residents of East Cleveland by developing successful, community-owned businesses – like Wake Robin Foods, a fermented food brand Samad purchased. Wake Robin will create ferments using produce from local, urban farmers.

“It’s black owned by black farmers so we can get some black dollars circulating in our culinary economy so they can have some freaking version of reparations for what has happened,” Samad says. “For me this is straight financial, who gets the opportunity to scale up.”

Samad says there’s an entire food system of African fermented foods “not being appropriated or appreciated in the U.S.” He hopes to disrupt the market.

“There’s an opportunity to introduce products that are owned by own by us, and by us I mean the African Diaspora,” he says.

Nuances in International Dining

Many American diners, though, are “still even at the elementary level of understanding the differences between different cultures in a diaspora,” says Kim, a former Top Contestant. “Asian cuisine is not just one monolithic cuisine.”

Some pan-Asian restaurants sell sushi (Japan) alongside kimchi (Korea) and pad thai (Vietnam), a “mish mash” of foods from different Asian countries. “We have to “continuously dig deeper to show there are nuances between the cultures,” she says.

It can be a difficult concept for chefs, too, who are trained in primarily French cuisine at culinary school. When Kim went through culinary school, a short quarter was focused on  global foods, “the rest is basically Fresh cuisine.”

Ethnic food — especially Asian fare— the food is often stereotyped as cheap, “it’s a bamboo ceiling that you can’t charge high prices,” Kim says. Western diners often don’t take into account the differences in quality of ingredients or the creativity, care and time in cooking a dish. “We’ve been seen as cheaper because we’re Asian, so people question why our prices are so high.”

Chun, who grew up helping in the family’s Korean restaurant, began Mother-in-Law’s kimchi questioning why kimchi wasn’t in the ranks of specialty craft foods like fine cheese.

“From the perspective of western fermented foods, from cheeses to wines to craft beers, those are the only things people are willing to spend their money on,” Chun says. She adds she felt very proud to be the first kimchi in specialty grocery store chain Dean and Deluca. 

In retail, many international food brands get placed in the ethnic aisle. But why does a sauce from an international region get placed in the ethnic aisle while spaghetti is placed in the sauces aisle?

“I’m torn over the concept of that existing,” Oh says. “We’ve been subjugated to the ethnic aisle aka the global ghetto where there’s no reason for it except the fact that I’m Korean.”

Cultural Regulatory Bias

Are there conflicts between tradition and science? Panelists shared how some health regulators don’t understand cultural ferments, causing batches of fermented food to be deemed unsafe for human consumption and thrown out.

Kim attempted to start a wholesale kimchi brand during the brand. Studies prove kimchi is made safely at a pH range of 4.2-4.5, but the regulator from the health department was told Kim legally had to keep kimchi under pH levels 3.3 to keep it safe.

“There’s so much confusion around it, I had to reach out to food scientists to clarify it, and we don’t want to get in trouble,” Kim says. She ended up cancelling the brand because securing regulatory approval was so difficult. 

Oh adds: “I think there’s a big cultural bias when it comes to fermented foods. In the U.S., it’s either the food is 100% clean scrubbed and pasteurized or it’s not – and the not is dangerous and dirty. Where fermented foods predates modern electricity and modern science, there’s a reason why it’s safe because it works out that it’s a very safe food because, through the lactic acid fermentation, it lowers the pH and that helps preserve the food.”

The laws around food production are confusing, costly and “don’t reflect diversity in food.” Cottage food producer laws allow budding chefs to start making ferments for retail sales, “but only if they’re made a certain way.”

An article in Minnesota Public Radio highlights a major gap in food regulation: immigrants are left out. Though food laws cover fermented kimchi and kombucha, for example, they’re restrictive for less common fermented foods and beverages from different cultures. Vino Raj, owner Square Root of Curry in Minnesota, points out that if he tried to make a fermented product from his native country, he’d have to “fundamentally change” the product to follow the state’s rules, “rendering them inauthentic.”

“You don’t see lots of South Indian foods because of that law,” he said. “The laws have not caught up to other forms of cooking.”

The barriers for immigrants wanting to start a small food business are especially high. Procedures often aren’t translated into other languages, commercial kitchens are challenging to find and expensive to rent, insurance and licensing is costly.

Pictured, Dao See, owner of Minne Street Rolls, sells traditional Lahu food and is advocating for Minnesota to sell more diverse food.

Read more (Minnesota Public Radio)

Washington Brewers Sue Oregon

Three Washington breweries are suing the state of Oregon, arguing a law puts out-of-state brewers at an unfair disadvantage. 

Oregon allows in-state brewers to sell their beer to licensed retail businesses. Out-of-state breweries that want to do the same must obtain a federal wholesaler’s permit, then use a licensed Oregon distributor. It’s expensive, especially for small- and mid-sized breweries.

Fortside Brewing Co. co-founder Michael DiFabio (pictured on the left with co-founder Mark Doleski) went through the arduous process four years ago, and founded a separate Oregon company (Fortis) just to distribute beer in the state. The process of getting their Washington beer to Oregon customers costs their brewery thousands of dollars a year. Fortside is one of the breweries involved in the lawsuit.

A Seattle Times article points out there is precedent for the case. A 2005 U.S. Supreme Court ruling “established the principle that states could not favor their own alcohol beverage industries.” 

The breweries involved – which also include Mirage and Garden Path Fermentation – want Oregon to treat out-of-state breweries the same as they do for in-state ones. Oregon brewers submit a statement each month detailing how much beer they sold. The state calculates the tax due and the breweries pay, with no additional permits or distributor fees.

“We’re just trying to level the playing field,” DiFabio says.

Read more (Seattle Times)

What exactly constitutes a health claim on a food label? It’s a contentious topic that can be a source of problems and expenses for the unwitting producer. 

“We want to communicate accurately and effectively to consumers in a way that’s truthful and not misleading. There needs to be a body of evidence that supports health claims,” said Josephine Wee, PhD, an assistant professor of food science at Penn State (and member of TFA’s Science Advisors). “The bottom line: health claims are complicated.”

Wee unpacked what is and isn’t a health claim during the FERMENTATION 2021 conference. Similar topics into the regulation of fermented foods will be addressed at TFA’s August conference, FERMENTATION 2022.

Wee questioned: does the fermentation community require health claims on certain fermented foods? Today, terms like gut health, probiotics and improved immunity dominate the language of  fermented foods. But words and definitions matter, Wee stressed.

Defining Health Claims

When putting health claims on a food label, website or marketing material, information must be truthful and transparent. Remember:

 –         The FDA has approved only 12 health claims. In the U.S., food labels can legally only include  health claims that meet FDA requirements. There must be “significant scientific agreement among qualified experts that these claims are factual and truthful,” Wee said. FDA approval is based on the amount of publicly available, scientific evidence from reputable studies.

–         A health claim is not a nutrient claim. Food producers cannot link the effect of a nutrient or food to a disease or health condition (other than in the rare case that there is supporting scientific evidence). Nutrient claims are defined by the FDA to “describe the level of a nutrient in the product, using terms such as free, high, and low, or they compare the level of a nutrient in a food to that of another food, using terms such as more, reduced, and lite.”

–         A health benefit cannot be used interchangeably with a health claim. A health claim must pass a two-part test: first, contain the characterization of the type of food/food component and, second, state its relationship to a disease. For example: “A good source of calcium and vitamin D. Reduces risk of osteoporosis.”

“The reason for these standards is that it provides a high level of confidence to validate the substance and disease relationship,” Wee said.

What is Not a Health Claim?

Wee said producers must be careful not to mislead consumers with an inaccurate health claim. 

She shared the International Scientific Association for Probiotics and Prebiotics (ISAPP) consensus statement on fermented foods. In it, the authors write: “Although consumers have become increasingly interested in fermented foods, it is unfortunate that, in our opinion, much information available on fermented foods in popular press magazines, websites and social media is exaggerated or inaccurate.”

Here are four health-related claims that are not health claims. 

1.      Description of well-being from consumption of a food. These claims do not mention a disease or disease-related condition. For example, “Multivitamins contribute to general good health.”

2.      Structure-function claims. A structure-function claim describes the role of an ingredient in affecting or maintaining normal structure or function in humans. “There is this presence of this food and food ingredient, but it doesn’t really talk about disease,” Wee explained. For example, “Calcium builds strong bones.”

3.      Dietary guidance. A dietary label addresses the role of good health in general dietary patterns. For example, “Five servings of fruits and vegetables a day are recommended for good health.”

4.      Nutrient content claim. These characterize the level of nutrients in food. For example, “Good source of fiber.”

“These four health-related claims are sometimes mistaken for health claims,” Wee said, “but they’re actually not health claims by the definition of regulatory agencies such as the FDA.”

 Where Can Producers Get Into Trouble?

Securing FDA approval for a new health claim can be arduous. Under the Nutrition Labeling Education Act of 1990 (NLEA), a company can petition the FDA to consider a new health claim. But the process is typically lengthy (240-540 days) and costly.

Often, it is a competitor that challenges a producer’s health claim.In 2010, Dannon was ordered to pay $45 million in a class-action lawsuit brought against them by Activia yogurt. Dannon’s ads claimed their yogurt was clinically and scientifically proven to regulate digestion and boost immune systems, but were deemed to be false advertising. 

In the past few years, kombucha brands have been particularly vigilant in monitoring health claims in their industry. Tortilla Factory (parent of Kombucha Dog) sued Trader Joe’s, Better Booch, Makana Beverages and Rowdy Mermaid Kombucha for supposedly violating the law by exceeding the 0.5% abv threshold.

“I think as fermented foods become more mainstream…over time consumers will become more educated and understand what these labels mean,” Wee noted.

Should there be global standards for fermented foods? A new study argues “to preserve consumer confidence in fermented foods,” uniform regulations are needed.

Current guidelines “are not mature enough to adequately regulate the significant diversity of fermented foods that are increasingly available in the market,” reads the study, published in the peer-reviewed journal Frontiers in Nutrition. While fermented foods are experiencing a major resurgence in popularity, standards and regulations differ by country and – in some instances – region and state. Fermentation regulations are few and, in the case of some foods, nonexistent. 

Scientists at Teagasc, Ireland (the agriculture and food authority in Ireland) studied regulations in North America, South America, Asia, Africa, Europe and Australia/New Zealand. Their research – supported by the Institute for the Advancement of Food and Nutrition Sciences (IAFNS) – is thorough. They found legislative efforts to regulate or standardize fermented foods “have been largely reactive, rather than being proactive, in nature.”

A harmonized blueprint, the study continues, would include specifics for each fermented food, not just the category. Uniform standards would include:

  • Microbial and chemical composition 
  • Safety protocols
  • Standards on storage, transportation and distribution
  • Communication guidelines
  • Regulatory clarity
  • Government expert committee oversight

“Ultimately, addressing the challenges outlined here, would contribute to the ease of doing business, encourage consumer and investor confidence, leading to growth and innovation in this category, which in turn will catalyse overall economic progress,” the study reads.

There is also a need for a uniform regulatory framework because there is “…a visible  lack of consideration of insights gained from the large corpus of microbiome studies on FFs and their microbial composition in corresponding global Food Standards or Codes.”

There is currently a Codex Alimentarius or “Food Code” by the Codex Alimentarius Commission, part of the Food Standards Programme for the United Nations Food and Agriculture Organization (FAO) and the World Health Organization (WHO). But fermented foods are not extensively represented. Regional standards have also been established by FAO and WHO, but these are generally for traditional fermented foods and beverages consumed only in certain regions, not widely used elsewhere.

The study points to South Korea and India as examples. Both countries have consolidated standards and specifications on fermented foods into legislation.

The FDA has issued a response – or non-response – to concerns from the International Dairy Foods Association (IDFA). 

Last July, the FDA issued a federal, legal definition of yogurt. The new rule upset the IDFA. The association, which represents the nation’s dairy industry, said the FDA’s rule is so outdated and out-of-touch with yogurt makers that popular products could be removed from grocery store shelves. The IDFA objected to the FDA’s rule and submitted an appeal in July 2021 to modernize the yogurt standard of identity (SOI). In December, after not receiving a response, IDFA sent a letter to the FDA commissioner, reiterating the request.

FDA recently issued a “notice of stay” to the IDFA, effectively telling them to keep waiting for a final ruling.

“Yogurt makers have been waiting 40 years for the FDA to update and modernize the yogurt standard of identity,” said Michael Dykes, president and CEO of the IDFA. “Today, the FDA issued a notice telling us to keep waiting — and threw in a whole lot of uncertainty, to boot.”

Adds an IDFA press release: “While a stay is helpful at this stage, IDFA’s efforts to reform the yogurt SOI will continue into an inexplicable fifth decade.”

The FDA first issued a definition of yogurt in 1981. The IDFA has requested a modernized version for decades. 

“IDFA remains deeply disappointed in the FDA process that led to the yogurt SOI final rule,” Dykes continues. “After 40 years since FDA first issued standards for yogurt, IDFA and our yogurt members are back to where we started several decades ago, beseeching the FDA to work with yogurt makers to make commonsense updates to a category that has been waiting more than four decades for modernization. Without standards that have been modernized, manufacturers are unable to meet consumer demands for innovative and nutritious yogurt products. With many significant provisions stayed, IDFA will continue to work on the yogurt SOI with an aim to ensure FDA continues to move forward in responding appropriately to IDFA’s objections in a timely manner.”

Read more (IDFA)

Consumers want foods that aid gut health, but brands face a major challenge. How can they educate buyers about microbiome health benefits without getting into trouble with regulators?

“It’s no longer enough to just say ‘healthy,’” says Alon Chen, CEO and co-founder of Tastewise, an “AI platform for food brands.” “We are absolutely more critical of health claims in general. We want to know how, we want to know why and we want it backed by science.”

The term “healthy” is no longer resonating with consumers. Over 30% are looking for products with multifunctional benefits, according to research by Tastewise. They want more detail, on topics such as gut health, sleep improvement, brain function, anti-bloating and energy. 

“Food is no longer just about nutrition, nor is it about general health,” says Flora Southey, editor at Food Navigator. “Consumers want more from the food they consume – and they want to be specific about it.”

What are the challenges and opportunities for brands trying to deliver gut health? A panel of food and nutrition experts tackled the issue during a Food Navigator webinar: “From Fermentation to Fortification: How is Industry Supporting Gut Health and Immunity?” Here are highlights.

Regulation Woes

There are trillions of microbes in our gut, but science has only scratched the surface of their power. Gut health is an ambiguous – and often confusing – subject for consumers. 

Regulations on gut health claims are evolving. A year ago, the European Food Standard Authority asked food producers to help evaluate microbiome-based product claims.

“In order for us to assert ourselves in the industry, we have to be able to defend and support these claims,” says Anthony Finbow, CEO of Eagle Genomics, a software company incorporating microbiome research into their data analysis.

It’s “the dawn of a new age,” according to Finbow. Major food companies are now valued for delivering nutrition in addition to caloric content. “There is greater consumer understanding that food is a mechanism for better health.”

Southey feels brands need to do more for consumer education “I’m not convinced [the message is] getting to the consumer as well as it should be.”

Nutrition drink brand MOJU is attempting to tackle the regulatory stumbling block of health benefits on a label. Strict rules requiring detailed substantiation have resulted in few gut health claims“We’ve got a long way to go from an education point of view,” says Ross Austen, research and nutrition lead at MOJU. 

MOJU can’t use the term “gut health,” but they can say a drink contains vitamin C or D, which have been proven to boost the immune system. They can’t say their drink is anti-inflammatory, but they can say it contains turmeric, known for its anti-inflammatory properties.

Marketing -Biotics

More consumers want the presumed gut health benefits of probiotics, prebiotics and postbiotics to power their microbiome. Probiotics “have largely stolen the headlines over the past few years,” Austen says, but prebiotics are appearing in more and more products. MOJU puts prebiotic fiber in their drinks because probiotics are a challenge for packaged food products. Because probiotics contain live and active cultures, they must be refrigerated and their efficacy tested.

Ashok Dubey, Phd, senior scientist and lead for nutrition sciences at TATA Chemicals (a supplier of chemical ingredients to food and drink producers), agrees. Dubey feels that the benefits of probiotics have been diminished in the minds of consumers. He notes that when probiotics first began appearing in foods 20 years ago, they were claimed to be able to solve any and all health ailments. 

“There’s a greater understanding that our gut microbiota is so complex, if the food we eat is so complex, then the solution we should provide should be a combination of all of this,” he says. Dubey is seeing more patents combining probiotics and prebiotics, a complex solution that he says looks at whole health.

But, he notes, any claim with -biotics must be validated by scientific research.

Traditional Foods vs. Clinical Trials

Hannah Crum, president of Kombucha Brewers International (KBI), takes issue with the need to validate every health claim with scientific research. “We shouldn’t displace a huge body of traditional knowledge in favor of pharmaceuticals,” she says.

Making health claims around -biotics has been challenging for the kombucha industry. “It doesn’t honor what food does for us nutritionally,” she adds. Today’s food industry is so heavily regulated that foods traditionally consumed by humans for centuries – like kombucha – can’t put a health claim on a label without proving benefits in a human clincal trial.

“It’s frustrating,” Crum says. ““In fact, because there is no definition of the word probiotic from a legal perspective, it leaves our brands vulnerable to be attacked by parasitic lawyers who just want to extract value from large corporations because they can.”

“In my opinion, we need to honor the fact that all traditionally fermented foods are probiotic by nature instead of saying ‘Well you need the research to prove it,’” she says.

A win for kombucha brewers — after a confusing month for  those trying to sell their products in South Carolina, they can now sell kombucha as a non-alcoholic beverage in the state. 

South Carolina’s Department of Revenue (DOR) had categorized all kombuchas as alcoholic beverages. The state.’s regulations set a maximum alcohol content for beverages but no minimum, so any fermented beverage with any alcohol content would be considered alcoholic. Since kombucha fermentation produces a trace amount of alcohol, a brewer

 would need to apply for a state alcohol license, and kombucha could not be sold to anyone under the age of 21. 

S.C.’s law contradicts the U.S. legal definition of an alcoholic beverage, which is any product with 0.5% or more alcohol by volume (ABV). 

After kombucha industry leaders contacted the state’s DOR and the South Carolina Retail Association (SCRA) to share advice and resources, the  regulation was amended to exempt kombucha. Kombucha Brewers International’s leadership and legal counsel, along with producers Buchi Kombucha, GT’s Synergy Kombucha, Health Ade, Humm and Brew Dr., were involved.

“Every time we are called to support commercial producers to advocate on their behalf with government agencies, we validate the category,” said Zane Adams, chair of KBI’s board and co-CEO of Buchi Kombucha and FedUp Foods. “Our very existence means that kombucha is not a fad rather it is a necessary beverage segment that will only continue to grow. We appreciate every opportunity to interface with regulators to help them better understand our product and processes.”

“Crisis creates community,” adds Hannah Crum, KBI president. “Our mission is to advocate and protect kombucha and that’s exactly what we were able to do here thanks to the cooperation of several KBI member and non-member brands. We also appreciate that we were able to create new relationships with the SCRA and the S.C. DOR as we worked together to create a harmonious resolution.”

Most retail stores sell kombucha in the refrigerated juice section. In a press release, KBI shared three points for food regulators who may be unsure in what beverage category kombucha fits:

  • Kombucha is not beer. Tax codes that lump kombucha with malt beverages are incorrect.
  • Kombucha is an acetic acid ferment. Its fermentation process is similar to that for vinegar. Trace amounts of ethanol will be left in the final ferment, and they act as a natural preservative.
  • Hard kombucha is an exception to non-alcoholic kombucha. Hard kombucha is intentionally made with a higher alcohol content, with the purpose to be sold and consumed as an alcoholic beverage.

KBI is currently lobbying for legislation that would exempt kombucha from excise taxes intended for alcoholic beverages. The KOMBUCHA Act, currently in Congress, proposes to raise the ABV threshold for kombucha taxation  from its current level of 0.5% to 1.25%. KBI is encouraging the public to sign a petition in support of the act. 

While KBI notes it would be ideal to create a new beverage category, “the process is long and arduous and requires a lot of financing for education and lobbying.”

Nutrition professionals need to share the details when recommending fermented products to clients. What are the health benefits of the specific food or beverage ? Does the product contain probiotics? Live microbes?

“There are a vast array of fermented foods. This is important because it means there can be tasty, culturally appropriate options for everyone,” says Hannah Holscher, PhD and registered dietitian (RD). But, she adds, remember that these are complex products.

Holscher spoke at a webinar produced by the International Scientific Association for Probiotics and Prebiotics (ISAPP) and Today’s Dietitian. Joined by Jennifer Burton, RD and licensed dietitian/nutritionist (LDN), the two addressed the topic Fermented Foods and Health — Does Today’s Science Support Yesterday’s Tradition? Hosted by Mary Ellen Sanders, executive director of ISAPP, the presentation touched on the foundational elements of fermented foods, their differences from probiotics, the role of microbes in fermentation, current scientific evidence supporting health claims and how to help clients incorporate fermented foods in their diets. 

Sanders called fermented foods “one of today’s hottest food categories.” Today’s Dietitian surveys show they are a top interest to dietitians, as the general public often turns to them with questions about fermented foods and digestive health. 

Here are three factors highlighted in the webinar that dietitians should consider before recommending fermented foods and beverages.

Does It Contain Live Microbes?

Fermentation is a metabolic process – microorganisms convert food components into other substances. 

In the past decade, scientists have applied genomic sequencing to the microbial communities in fermented foods. They’ve found there’s not just one microbe involved in fermentation, Holscher explained,  there may be many. The most common microbes in fermented foods are streptococcus, lactobacillaceae, lactococcus and saccharomyces.

But deciphering which fermented food or beverages contains live microbes can be difficult.

Live microorganisms are present in foods like yogurt, miso, fermented vegetables and many kombuchas. But they are absent in foods that were fermented then heat-treated through baking and pasteurization (like bread, soy sauce, most vinegars and some kombucha). They’re also absent in fermented products that are filtered (most wine and beers) or roasted (coffee and cacao). And there are foods that are mistakenly considered fermented but are not, like chemically-leavened bread, vegetables pickled in vinegar and non-fermented cured meats and fish.

“The main take-home message is that it’s not always easy to tell if a food is a fermented food or not. So you may need to do more digging, either by reading the label more carefully or potentially contacting the food manufacturer,” Holscher said. “When we just think of if live microbes are present or not, a good rule of thumb is if that food is on the shelf at your grocery store, it’s very likely that it does not contain live microbes.”

Does It Contain Probiotics?

The dietitians stressed: probiotics are not the same as fermented foods.

“Probiotics are researched as to the strains and the dosages to be able to connect consumption of a probiotic to a health outcome,” Holscher said. “These strains are taxonomically defined, they’ve been sequenced, we know what these microorganisms can do. They also have to be provided in doses of adequate amounts of the live microbes so foods and supplements are sources of probiotics.”

Though fermented foods can be a source of probiotics, Holscher notes: “In most fermented foods, we don’t know the strain level designation.”

“For most of the microbes in fermented foods, we’ve just really been doing the genomic sequencing of those over the last 10 years and so we may only know them to the genus level right,” she said. For example, we know lactic acid bacteria are present in kimchi and sauerkraut.

Holscher suggests, if a client has a specific health need, a probiotic strain should be recommended based on its evidence-based benefits. For example, the probiotic strain saccharomyces boulardii is known to help prevent travel-related diarrhea, and so would be good for a patient to take before a trip.

“If you’re looking to support health and just in general, fermented foods are a great way to go,” Holscher says.

The speakers recommended looking for probiotic foods in the Functional Food Section of the U.S. Probiotic Guide.

Does Research Support Health Claims?

Fermentation contributes to the functional and nutritional characteristics of foods and beverages. Fermented foods can: inhibit pathogens and food spoilage microbes, improve digestibility, increase vitamins and bioactives in food, remove or reduce toxic substances or anti-nutrients in food and have health benefits.

But research into fermented foods has been minimal, mostly limited to fermented dairy. Dietitians should be careful making strong recommendations based on health claims unless those claims are supported by research. And food labels should always be scrutinized.

“There’s a lot of voices out there that are trying to answer this question [Are fermented foods good for us?],” says Burton. “Many food manufacturers have published health claims on their labels talking about these benefits and, while those claims are regulated, they’re not always enforced. Just because it has a food health claim on it, that claim may not be evidence-based. There’s a lot of anecdotal accounts of benefits coming from eating fermented foods and the research is suggesting some exciting potential mechanisms. But overall we know as dietitians we have an ethical responsibility to practice on the basis of sound evidence and to not make strong recommendations if those are not yet supported by research.”

Reputable health claims are documented in randomized control trials. But only “possible benefits” can be linked to nonrandomized controlled trials. And non-controlled trials are  the least conclusive studies of all.

For example, Burton puts miso in the “possible benefits” category because, with its high sodium content, there’s not enough research indicating it’s safe for patients with heart disease. Similarly, she does not recommend kombucha because of its extremely limited clinical research and evidence. 

“We have to use caution in making these recommendations,” Burton says.

This is why Burton advises dietitians to be as specific as possible. Don’t just tell patients “eat fermented foods” — list the type of fermented food and its brand name. She also says to give patients the “why” — what is the benefit of this fermented food? Does it increase fiber or boost bioavailability of nutrients? 

“Are fermented foods good for us? It’s safe to say yes,” Burton says. “There’s a lot that we don’t know, but the body of evidence suggests that fermentation can improve the beneficial properties of a food.”