Kefir Brands Respond

The kefir brands recently tested for their probiotic claims are challenging the results. 

In May, a study found 66% of commercial kefir products overstated probiotic counts and “contained species not included on the label.” The Journal of Dairy Science Communications published the peer-reviewed work by researchers at the University of Illinois and Ohio State University.

“Based on the results…there should be more regulatory oversight on label accuracy for commercial kefir products to reduce the number of claims that can be misleading to consumers,” reads the study. “Classification as a ‘cultured milk product’ by the FDA requires disclosure of added microorganisms, yet regulation of ingredient quality and viability need to be better scrutinized. All 5 kefir products guaranteed specific bacterial species used in fermentation, yet no product matched its labeling completely.”

Researchers tested two bottles of each of five major kefir brands: Maple Hill Plain Kefir, Siggi’s Plain Filmjölk, Redwood Hill Farm Plain Goat Milk Kefir, CoYo Kefir and Lifeway Original Kefir. Bottles were measured for microbial count and taxonomy to validate label claims.

The Fermentation Association reached out to the five brands involved and asked for their responses to the results. Redwood Hill and Lifeway both submitted detailed statements. Maple Hill, Siggi’s and CoYo did not return multiple requests for comment.

Probiotic Count

Probiotics in fermented products are listed in colony-forming units (CFUs), and the study found kefir from both Lifeway and Redwood Hill contained fewer CFUs than what was claimed on the label. But these brands — who send their products to third-party labs for testing — said the results are not accurate.

Lifeway refutes the assertion that their Original Kefir did not meet the claimed probiotic count. Lifeway references U.S. Food and Drug Administration food labeling laws, which dictate that a product “must provide all nutrient and food component quantities in relation to a serving size.” Lifeway’s label on their 32-ounce bottle says that the serving size of kefir is 1 cup, making the claim of 25-30 billion CFUs per serving size accurate.

The study results, Lifeway notes in their statement, were “premised upon an erroneous assumption that Lifeway claims it has 25-30 billion CFUs per gram” rather than per serving size.

“The authors’ flawed assumption is perhaps a result of their lack of familiarity with FDA labeling requirements or a result of merely overlooking the details in order to support their intended conclusions going into the testing,” reads a statement from Lifeway. 

In fact, Lifeway points out, the study’s “erroneous conclusion premised upon the flawed assumption…actually proves the accuracy of Lifeway’s claim of 25-30 billion CFUs per (8 ounce) serving.”

Redwood Hill Farm, too, refutes the study’s conclusion. Their Goat Milk Kefir currently includes the phrase “millions of probiotics per sip” on its label. The label referenced in the study was an old version that claimed “hundreds of billions” of probiotics, which was discontinued last year. According to Redwood Hill Farm, that old label was based on third-party testing that confirmed hundreds of billions of CFUs per 8-ounce serving. But careful review of the kefir’s probiotic counts in 2019-2020 found some CFUs in the hundreds of billions and others in the tens of billions. Redwood Hill changed their label to millions rather than billions “to be absolutely sure that we could meet our target claim on a consistent basis.”

Variation in CFU counts is common in traditional plating testing techniques. Redwood Hill referenced a study published in Nutritional Outlook that found that plating results can vary 30-50%.

“Given the challenges around probiotic CFU enumeration, we were not too surprised to see a discrepancy between the number of CFUs in our Goat Milk Kefir found in the study and our past analyses,” reads the statement from Redwood Hill Farm. “Like all living organisms, probiotics are challenging to control and measure. A particular microorganism’s ability to reproduce is impacted by a variety of factors, including temperature, oxygen level, variations in the nutrient composition of the milk, and pH level. Our kefir has a sixty-day shelf life and during that time the different types of bacteria in the product will peak and die-off in relation to the conditions those particular bacteria like. For example, fermented dairy products naturally become more acidic (lower pH) as they age and while some bacteria thrive in acidic environments, others’ reproduction is stunted. This makes the exact CFU count rather volatile not only from bottle to bottle, but also throughout the timespan between when that bottle leaves our facility and when it expires.”

Redwood Hill Farm’s most recent testing measured 400 million CFUs per gram or 96 billion per serving (1 cup). These figures compare with what the study found — 193 million CFUs per gram or 46 billion per serving. 

“Although the University of Illinois study found only half the probiotic cells that our study did, this is actually not that wide of a variation in bacteria reproduction based on all of the conditional factors outlined above,” their statement reads.

Species Count

The study’s test results found all kefir brands contained species not on the label. Lifeway notes their culture claims are based on the time of manufacture, not on expiration date. “Moreover, the authors validate that all of the claimed culture species except for the bifidos, Leuconostoc and L. reuteri, (which could be at a low concentration due to time of shelf-life), were identified in their testing,” reads Lifeway’s statement.

Redwood Hill Farm says that, based on the study results (that “2 Lactobacillus delbrueckii subspecies or 3 Lc. lactis subspecies could not be identified” in their kefir), they are pursuing further analysis. They’ve contacted their culture supplier for further insight, and are sending new samples to a third-party lab. 

“These cultures are at the heart of the product and are what transforms the goat milk into a yogurt drink with its characteristic thick and creamy texture and tart flavor,” reads the Redwood Hill Farm statement. “It’s difficult to understand how these core active agents in the kefir could not be present in the product at any stage in its lifecycle.”

DNA vs. Plating Methodology 

The study utilized both DNA sequencing and traditional plating methodologies, even though plating testing alone is considered the industry standard for kefir. Plating testing for kefir is done in a microbiology laboratory where it’s incubated to determine bacteria colony growth.

The study itself notes: “Limitation of DNA-based sequencing methods could explain why taxa stated on labels were not detected and why unclaimed viable species were identified.” 

Lifeway points out: “This concession as to testing limitations is critical to note as it is but one explanation of many as to why various species may have not been detected. First and foremost, the authors fail to validate the DNA extraction method to establish that it delivers all the available DNA in the type of dairy product analyzed; for example, they do not appear to have broken down the calcium bonds. Further, they appear to not have undertaken the required extra enzymatic treatments. Moreover, for their microanalysis, they are using MRS [a method for cultivation of lactobacilli] but only incubating for 48 hours. As most kefir products would contain a significant amount of Lactococci, there is a high chance of not detecting this species unless you go to 72 hours of incubation. Another unknown important factor in the testing is the time period within the cycle of the shelf-life of the product that was tested. This is critical as the longer the product sits on a shelf, the fewer number of live and active bacteria will be present.”

Meanwhile, Redwood Hill Farm says “our team will continue to educate ourselves on the application of DNA sequencing technology to fermented food product probiotic count analysis and what opportunities and limitations this methodology may offer versus traditional plating techniques.”

A new peer-reviewed study from researchers at the University of Illinois and Ohio State University found 66% of commercial kefir products overstated probiotic count and “contained species not included on the label.”

Kefir, widely consumed in Europe and the Middle East, is growing in popularity in the U.S. Researchers  examined the bacterial content of five kefir brands. Their results, published in the Journal of Dairy Science, challenge the “probiotic punch” the labels claim.

“Our study shows better quality control of kefir products is required to demonstrate and understand their potential health benefits,” says Kelly Swanson, professor in human nutrition in the Department of Animal Sciences and the Division of Nutritional Sciences at the University of Illinois. “It is important for consumers to know the accurate contents of the fermented foods they consume.”

Probiotics in fermented products are listed in colony-forming units (CFUs). The more probiotics, the greater the health benefit. 

According to a news release from the University of Illinois: “Most companies guarantee minimum counts of at least a billion bacteria per gram, with many claiming up to 10 or 100 billion. Because food-fermenting microorganisms have a long history of use, are non-pathogenic, and do not produce harmful substances, they are considered ‘Generally Recognized As Safe’ (GRAS) by the U.S. Food and Drug Administration and require no further approvals for use. That means companies are free to make claims about bacteria count with little regulation or oversight.”

To perform the study, the researchers bought two bottles of each of five major kefir brands. Bottles were brought to the lab where bacterial cells were counted and bacterial species identified. Only one of the brands studied had the amount of probiotics listed on its label. 

“Just like probiotics, the health benefits of kefirs and other fermented foods will largely be dependent on the type and density of microorganisms present,” Swanson says. “With trillions of bacteria already inhabiting the gut, billions are usually necessary for health promotion. These product shortcomings in regard to bacterial counts will most certainly reduce their likelihood of providing benefits.”

The news release continues:

When the research team compared the bacteria in their samples against the ones listed on the label, there were distinct discrepancies. Some species were missing altogether, while others were present but unlisted. All five products contained, but didn’t list, Streptococcus salivarius. And four out of five contained Lactobacillus paracasei.

Both species are common starter strains in the production of yogurts and other fermented foods. Because those bacteria are relatively safe and may contribute to the health benefits of fermented foods, Swanson says it’s not clear why they aren’t listed on the labels.

Although the study only tested five products, Swanson suggests the results are emblematic of a larger issue in the fermented foods market.

“Even though fermented foods and beverages have been important components of the human food supply for thousands of years, few well-designed studies on their composition and health benefits have been conducted outside of yogurt. Our results underscore just how important it is to study these products,” he says. “And given the absence of regulatory scrutiny, consumers should be wary and demand better-quality commercial fermented foods.”

Dairy-Free “Vegurt”

Chr. Hansen, a global bioscience supplier of ingredients, has developed Vega Culture Kits, a new line of probiotic starter cultures that can be used to create plant-based yogurt. “Vegurt,” a shortening of vegan or vegetarian yogurt, is the name being used for this non-dairy product. This term was created in reaction to the European Parliament’s current debate over whether plant-based products can use dairy-related terms like yogurt and milk.

“Vegurt seemed a catchy and suitable category name compared to having to sprain our tongues calling them ‘fermented plant-based alternatives to dairy yogurt,’” said Dr. Ross Critenden, senior director for commercial development at Chr. Hansen. 

The Vega Culture Kits are  designed to “robustly ferment” any dairy-free plant base, like nuts, cereals, legumes or seeds. The Vega Culture will appear as “culture” on ingredient lists, in the same way that dairy yogurts include “culture” when cultures or probiotic strains are added.

Read more (Food Navigator)

For the fifth year in a row, the KOMBUCHA Act was reintroduced to Congress. If the legislation passes, kombucha beverages would be 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%.

“The past year has been incredibly hard on businesses in Oregon and across the country, especially as supply chains have been disrupted. Still, kombucha is one the fastest growing beverage industries in the world,” says U.S. Rep. Earl Blumenauer (D-OR). “There’s no reason why kombucha brewers and sellers should get taxed like beer. Our common sense legislation would eliminate this burden and support a burgeoning industry that has a major impact on Oregon’s food and beverage economy.”
U.S. retail sales of kombucha sales grew 2.4% over the twelve months though mid-July 2020, to $703.2 million, according to SPINS.

“Modernize Taxes & Regulations”

Blumenauer first introduced the bill in 2017 — and has reintroduced it every year since. Senator Ron Wyden (D-OR), the Senate Finance Chair, is the bill’s co-sponsor.

The word “KOMBUCHA” also has a double meaning — it is an acronym for Keeping Our Manufacturers from Being Unfairly taxed while Championing Health Act. The legislators understand kombucha is a fast-growing beverage category, especially in their home state of Oregon, home to many kombucha brands.

“The growth of kombucha production in Oregon and nationwide creates jobs and a beverage folks enjoy,” Wyden said. “It’s been a particularly difficult year for small businesses, and our bill would modernize taxes and regulations so these businesses can continue to grow and sell their products in stores across the country.”

Kombucha Brewers Lobby

Commercial kombucha brewers are especially concerned with the regulation. In 2010, Whole Foods and other retailers pulled kombucha off shelves as the Alcohol and Tobacco Tax and Trade Bureau 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.

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

“These numbers were created over 100 years ago during prohibition,” says Crum, and notes there are no scientific studies on these ABV values. “Kombucha labels say ‘Alcohol is present’ — no one is trying to trick the consumer.”

Reads a statement from KBI: “ 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 supported the bill actively. KBI — for the first time — is asking consumers to write to their government representatives (via a form on their website) to urge them to support the bill. 

When Julie Smolyansky began working at her family’s Lifeway Foods business, her father advised her: “Don’t talk about the bacteria. People in America freak out about the bacteria on their food.” So when Lifeway became the first company in the U.S. to put “probiotic” on a label in 2003, it wasn’t a big surprise when customers began calling, asking for the company’s non-probiotic version of kefir.

Americans have come a long way. Consumers today search for the “live, cultured” label on fermented dairy, and gut health is a critical component of the modern diet. Smolyansky and Raquel Guajardo, author/educator, shared their thoughts on kefir during the TFA webinar The Many Sides of Kefir

“Fermented foods were not part of the American diet, and the way that kefir and fermented foods in general were used in other parts of the world from Asian to Eastern Europe to even India and Mexico, these cultures all have fermented foods as one of their pillars as their foods sources and their health and wellness cultures,” Smolyansky says. “It wasn’t until immigration from all these other countries that we started talking about kimchi or kefir or lassi or you name your cultured kind of special food.”

In the U.S., the average person consumes 9-10 cups of fermented dairy a year. Contrast that statistic with Europe, where the average consumption is 28 cups a month.

“When you’re born consuming it and you’ve developed that taste palette, then it’s very easy to play in the space and have a diet that’s very rich in probiotics and kefir and all sorts of other fermented foods,” Smolyansky says, adding that the situation is changing in the U.S. Now, “people are hungry for it, they want it, once they learn about it, once they taste it, they fall in love with it, they’re hooked.”

Lifeway’s kefir’s sales have soared. The company was valued at $12 million when Smolyansky took over in 2002 — now it’s valued into the hundreds of millions. And even more customers have found kefir during the COVID-19 pandemic, as they adopt healthier lifestyles.

Guajardo has seen her online classes increase during COVID. The Mexico-based educator co-authored the book “Kombucha, Kefir, and Beyond” with Alex Lewin, TFA advisory board member, who moderated the webinar.

“People say ‘You’re crazy, why do you teach what to do at home what you can buy in the supermarket?’ But my business has been growing that way,” she says, adding that health benefits are the main selling point for her classes. “Why would people buy sauerkraut or kefir if you’re not explaining the benefits?”

Dairy Kefir vs. Water Kefir 

Guajardo, who makes both dairy kefir and water kefir (also known as tibicos) stresses that the grains used to make each are “totally different.” Kefir grains are living bacteria and yeast microorganisms clumped together with milk proteins and sugars. They are gelatinous and white, almost like cottage cheese. Water kefir grains are also made from living bacteria and yeast microorganisms, but they’re clumped together with sugar and have a translucent, crystal-like appearance.

“Water kefir” is not the appropriate term, Guajardo and Smolyansky agree, instead calling it by its traditional Mexican name, tibicos. And they feel that using kefir or tibicos grains in coconut or almond milk and calling it kefir is also inappropriate. Smolyansky favors using a description like cultured coconut milk or beverage, but not kefir. 

The National Dairy Council and Codex Alimentarius, the international food code, both state kefir is a fermented dairy product made from the milk of a lactating mammal. Smolyansky points to the many peer-reviewed studies on kefir, verifying it is full of probiotics and nutrients. Water kefir and non-dairy kefir have not been studied, and can’t guarantee the same health benefits.

“Just by throwing the name onto anything and just bastardizing the definition, we completely dilute any of the research that’s ever been done [on kefir], it would dilute the history, the folklore. So we are very passionate about protecting the name,” Smolyansky says. “My ancestors made sure that kefir survived for 2,000 years, and it’s critical that we don’t dilute it now that it’s having a moment, now that it’s popular.”

Smolyansky’s family emigrated to the United States from the then Soviet Union in the late ‘70s. Her father, Michael, began Lifeway Foods in Chicago in 1986. 

“We have to respect the standards and what these definitions mean or it will be the Wild West and people won’t know what they’re buying,” she adds. She shares the labelling of ice cream as an example — ice cream is considered dairy while non-dairy products have other names, like sorbet, gelato or non-dairy frozen dessert. 

Can Kefir Grow Like Yogurt?

Yogurt has paved the way for kefir to expand its consumer base in the U.S. Both are fermented dairy products with tangy tastes. But for kefir to achieve widespread, mainstream adoption like yogurt, significant education is needed. Thousands of peer-reviewed studies prove kefir contains a higher concentration of probiotics than yogurt — and a wider range of beneficial bacteria. For kefir to grow, this message needs to reach consumers.

“It’s a different set of microbes,” Lewin says. “Kefir is fermented with yeast and yogurt isn’t. Kefir has a larger family of microbes.” 

Smolyansky is passionate that kefir cannot be compared to the products of the major. yogurt companies.

“The yogurt produced in the United States is so over-produced and so over-pasteurized that there’s practically nothing living in it after it’s been processed,” she says. “It’s one of the biggest problems with yogurt in the U.S.”

Lifeway regularly sends their products to be tested for probiotics, measuring Colony Forming Units (CFUs), the active microorganisms in a food product. Smolyansky says eating probiotics is critical in a germ-phobic, antibody-heavy society, where we’re over-sanitizing due to the coronavirus pandemic.

“If our bodies aren’t fighting an outside kind of pathogen, it starts to fight itself,” she says. “One of the ways to counteract this disruption in our microflora is by the use and the introduction of consistently replenishing microflora including diversity of bacteria, a variety of food sources that offer bacteria, the diversity and kind [of bacteria] is always the king. It makes for great food environments in the gut.”

Leaders in the biotechnology industry are calling fermentation “Agricultural 2.0.” As consumers continue to seek alternative protein and dairy options, more biotech companies are using fermentation to produce alt-proteins. Ricky Cassini, co-founder and CEO of natural food colourant start-up Michroma, says: “The fermentation space is thriving and there is a lot of progress around this technology.”

Here are three expected developments in  fermentation processing  this year:

  1. More dairy-free cheese products will enter the market.
  2. Price points for alternative proteins will drop as more players enter the market.
  3. Regulatory issues and naming conventions will gain in significance.

Read more (Food Navigator)

After Dr. Bob Hutkins finished a presentation on fermented foods during a respected nutrition conference, the first audience question was from someone with a PhD in nutrition: “What are fermented foods?”

“I thought ‘Doesn’t everyone know what fermentation is?’ I realized, we do need a definition. Those of us that work in this field know what we’re talking about when we say fermented foods, but even people trained in foods do not understand this concept,” says Hutkins, a professor of food science at the University of Nebraska-Lincoln. He presented The New Definition of Fermented Foods during a webinar with TFA

Hutkins was part of a 13-member interdisciplinary panel of scientists that released a consensus definition on fermented foods. Their research, published this month in Nature Reviews Gastroenterology & Hepatology, defines fermented foods as: “foods made through desired microbial growth and enzymatic conversions of food components.”

“We needed a definition that conveyed this simple message of a raw food turning into a fermented food via microorganisms,” Hutkins says. “It brings some clarity to many of these issues that, frankly, people are confused about.”

David Ehreth, president and founder of Alexander Valley Gourmet, parent company of Sonoma Brinery (and a TFA Advisory Board member), agreed that an expert definition was necessary.

“As a producer, and having started this effort to put live culture products on the standard grocery shelf, I started doing it as a result of unique flavors that I could achieve through fermentation that weren’t present in acidified products,” Ehreth says. “Since many of us put this on our labels, we should be paying close attention to what these folks are doing, since they are the scientific backbone of our industry.”

Hutkins calls fermented foods “the original shelf-stable foods.” They’ve been used by humankind for over thousands of years, but have mushroomed in popularity in the last 15. Fermented foods check many boxes for hot food trends: artisanal, local, organic, natural, healthy, flavorful, sustainable, innovative, hip, funky, chic, cool and Instagram-worthy.

Nutrition, Hutkins hypothesizes, is a big driver of the public’s interest in fermentation. He noted that Today’s Dietitian has voted fermented foods a top superfood for the past four years. 

Evidence to make bold claims about the health benefits of fermentation, though, is lacking. Hutkins says there is observational and epidemiological evidence. But randomized, human clinical trials — “the highest evidence one can rely on” — are few and small-scale for fermented foods. 

Hutkins shared some research results. One study found that Korean elders who regularly consume kimchi harbor lactic acid bacteria (LAB) in their GI tract, providing compelling evidence that LAB survives digestion and reaches the gut. Another study of cultured dairy products, cheese, fermented vegetables, Asian fermented products and fermented drinks found that most contain over 10 million LAB per gram. 

Still, the lack of credible studies is “a barrier we have to get past,” Hutkins says. There are confirmed health benefits with yogurt and kefir, but this research was funded by the dairy industry, a large trade group with significant resources. 

“I think there’s enough evidence — most of it through these associated studies — to warrant this statement: fermented foods, including those that contain live microorganisms, should be included as part of a healthy diet.”

Probiotics and fermented foods are not equivalent, says Mary Ellen Sanders, PhD and executive science officer of the International Scientific Association of Probiotics & Prebiotics (ISAPP). She advises fermented food producers that don’t meet the criteria of a probiotic to use descriptors such as “live active cultures” or “fermented food with live microbes” on their labels rather than “probiotic.”

“There are quite a few differences between probiotics and many fermented foods. You cannot assume a fermented food is a probiotic food even if it has live cultures present,” says Sanders. She highlighted her 30 years worth of insight into the field during a TFA webinar, Are Fermented Foods Probiotics? 

Some fermented foods do meet these criteria, such as some yogurts and cultured milks that are well-studied. But many traditional fermented foods do not. 

Using multiple peer-reviewed scientific studies and conclusion from expert panels in the fields of probiotics and fermented foods, Sanders shared the ways in which fermented foods and probiotics differ:

  1. Health benefits

By definition, a probiotic must have a documented health benefit. Many fermented foods have not been tested for a health benefit. 

“If you are interested in recommending health benefits from a fermented food in an evidence-based manner, many traditional fermented foods fall short. They don’t have the controlled randomized trials that will provide a causal link between the food and the health benefit,” she says. “A food may be nutritious, but probiotic benefits must stem from the live microbe, not the nutritional composition of the food. Otherwise you just have a nutritious food that happens to have live microorganisms in it. You don’t have a probiotic food.”

  1. Quality studies

In her presentation, Sanders shared  multiple randomized clinical trials on human subjects with supported health evidence for probiotics. But there are few randomized, controlled studies on fermented foods. Most are cohort studies, which inherently have a higher risk of bias and cannot provide a causal link between consuming fermented foods and a health benefit. 

“A strong hypothesis is not the same as proof,” Sanders says. “Evidence for probiotics must meet a higher standard than small associative studies, many of which are tracking biomarkers and not health endpoints.” 

She noted, though, there are some studies on fermented milk and yogurt that show a conferred health benefit.

  1. Strain designation

Though many fermented foods do have live microbes, a probiotic is required to be identified to the strain level. The genus and species should also be properly named according to current nomenclature. Many fermented foods contain undefined microbial composition. Without that strain designation, one can’t tie the scientific evidence on that strain to the probiotic product.

  1. Microbe quantity

Another key differentiator is that probiotics must be delivered at a known quantity that matches the amount that results in a health benefit. Probiotics are typically quantified in colony forming units (or CFUs). 

“A probiotic has a known effective dose. But fermented foods often contain unknown levels of microbes, especially at time of consumption,” Sanders says.

What Can Brands Do?

If food brands keep using the word probiotics as a catch-all to describe a fermented product, the term will lose its utility. Using “probiotics” on food with unsubstantiated proof of probiotics is a misuse of the term.

“When I see a fermented food that says probiotics on it, I very often think what they’re trying to communicate on that label [is that it] contains live microbes,” Sanders says, “because I’m doubting, at least some of the products I see, that they have any evidence of a health benefit. And so they’re just looking for a catchy, single word that will communicate to people that this has live microbes in it. ‘Live active cultures’ is something that resonates with people as well. So why not use that?”

Sanders encourages fermented brands to standardize the terms “live active cultures,” “live microbes,” “live microorganisms” or “fermented food with live microbes.” For products pasteurized after fermentation, there’s a term for them too: “Made with live cultures.”

Controlled human studies on fermented foods can be challenging, Sanders admits. Such studies can be difficult to properly blind, since placebos for foods are hard to design. The fermentation process affects the product taste so that study subjects may know what they are consuming. But the health benefits of fermented foods could be studied, though. She also advises producers to focus on the nutritional value of their food. 

“That’s one thing that really has me excited about this concept of core benefits,” says Maria Marco, PhD, professor  of food science and technology at University of California, Davis (and a member of TFA’s Advisory Board) and moderator of the webinar. “I think it kind of opens the doors to the possibility of fermented fruits and vegetables where there’s certain organisms, microorganisms that we’d expect to be there but again we need to know really if those microorganisms are needed to make those foods healthy.”

By August, any manufacturer labeling their fermented or hydrolyzed foods or ingredients “gluten-free” must prove that they contain no gluten, have never been through a process to remove gluten, all gluten cross-contact has been eliminated and there are measures in place to prevent gluten contamination in production.

The FDA list includes these foods: cheese, yogurt, vinegar, sauerkraut, pickles, green olives, beers, wine and hydrolyzed plant proteins. This category would also include food derived from fermented or hydrolyzed ingredients, such as chocolate made from fermented cocoa beans or a snack using olives.

Read more (JD Supra Legal News

Every year, the nation’s 50 state legislatures pass dozens of new laws that have an impact on fermenters. For example, some states amended alcohol laws to allow drink sampling for craft wineries, while others repealed outdated cottage food laws to help small producers operate and more loosened take-out restrictions to help small restaurants survive the pandemic. 

Indicative of this year’s focus on the pandemic, laws were introduced but never debated  as lawmakers focused on more pressing issues surrounding the coronavirus. The most common new laws passed in 2020 revolved around helping businesses survive — states called special sessions to aid restaurants, stop price gouging of high-demand products and provide emergency grants to small businesses. 

Read on for key food, beverage and food service laws passed this year, most taking effect in 2021.

California 

AB82 — Prohibits an establishment with an alcohol license from employing an alcohol server without a valid alcohol server certification.

AB3139 — Establishments with alcoholic beverages licenses who had premises destroyed by fire or “any act of God or other force beyond the control of the licensee” can still carry on business at a location within 1,000 feet of the destroyed premise for up to 180 days.

Delaware 

HB 237 — Eliminates old requirements that movie theaters selling alcohol must have video cameras in each theater, and that an employee must pass through each theater during a movie showing.

HB275 — Permits beer gardens to allow leashed dogs on licensed outdoor patios.

HB349 — Permits any restaurant, brewpub, tavern or taproom with a valid on-premise license to sell alcoholic beverages for take-out or drive through food service, so long as the cost for the alcohol did not exceed 40% of the establishment’s total sales transactions. 

Hawaii

SR84 — Creates a Restaurant Reopening Task Force to help restaurants in Hawaii safely reopen that were closed during the COVID-19 pandemic. 

SR94 — Urges restaurants to adopt recommended best practices and safety guidelines developed by the United States Food and Drug Administration and National Restaurant Association in response to the COVID-19 pandemic.

Idaho

HB343 — Amends existing law to require licensing to store and handle wine as a  wine warehouse.

HB575 — Allows sampling of alcohol products at liquor stores, which was formerly forbidden under law.

SB1223 — Eliminates obsolete restrictions on food products, to match federal standards. It repeals requiring extra labels on some imported food products, and repeals using enriched flour in bread baking. 

Illinois

HB2682 — Amends Liquor Control Act of 1934. Allows a cocktail or mixed drink placed in a sealed container at the retail location to be sold for off-premises consumption if specified requirements are met. Prohibits third-party delivery services from delivering cocktails or mixed drinks. 

HB4623 — Amends Food Handling Regulation Enforcement Act, regulating that public health departments provide a certificate for cottage food operations, which must be displayed at all events where the licensee’s food is being sold.

Iowa

HB2238 — Amends code regarding food stands operated by a minor. Bans a municipality from enforcing a license permit or fee for a minor under the age of 18 to sell or distribute food at a food stand.

Kentucky

HB420 — Implements Food Safety Modernization Act, authorizing a department representative to enter a covered farm or farm eligible for inspection.

SB99 — Amends alcohol laws for state’s distillers, brewers and small wineries. Eliminates the sunset on local precinct elections to grant distilleries, and allows distillers to sell other distiller’s products.

Louisiana

HR17 — Allows third-party delivery services to deliver alcohol. 

HB136 — Makes adulterating a food product by intentional contamination a crime.

SB455 — Increases the size of containers of high-alcoholic beverages.

SB508 — Gives restaurants protection from lawsuits involving COVID-19. The public will be unable to sue restaurants for COVID-19-related deaths or injuries, as long as the restaurant complies with state, federal and local regulations about the virus. 

Maine

LD1167 — Encourages state institutions to serve Maine food and Maine food products, increasing the visibility of the state’s local food producers. 

LD1884 — Amends current laws regarding businesses that hold dual liquor licenses, which authorized retailers to sell wine for consumption both on- and off-premise. Retailers with the dual license can now sell with just one employee at least 21 years of age present, and adds that wine can be sold for take-out if food is part of the transaction.

Maryland

HB1017 — Allows cottage food businesses to put their phone number and business ID on their food label, rather than their address as currently required by the Maryland Department of Health.

SB118 — Expands definition of “alcohol production” and “agricultural alcohol production.” The new definitions aim to give Maryland farmers and producers the ability to sell beer, wine and spirits to increase agritourism.

Massachusetts

SB2812 — Expands alcohol take-out and delivery options during COVID-19 pandemic. Allows restaurants to sell mixed drinks in sealed containers alongside other take-out and delivery food orders.

Michigan

HB5343 — Revises regulations on brewpubs and microbreweries, increasing the quantity of beer a microbrewer is permitted to deliver to a retailer during a year from 1,000 barrels to 2,000 barrels. 

HB5345 — Amends the Michigan Liquor Control Code to delete the Michigan Liquor Control Commission (MLCC) $6.30 tax levied on each barrel of beer manufactured and sold in Michigan.

HB5354 — Amends the Michigan Liquor Control Code to delete the requirement that a brewpub cannot sell beer in Michigan unless it provides for each brand or type of beer sold a label that truthfully describes the content of each container.

SB711 — Establishes new limited production brewer license for microbreweries at cost of $1,000 for license.

HB5356 — Amends the Michigan Liquor Control Code to ban the required $13.50 cent-per-liter tax on all wine containing 16% or less of alcohol by volume sold in Michigan.

Minnesota

HB5 — Authorizes emergency, small-business grants and loan funding for businesses affected by COVID-19.

HB4599 — Extends period of mediation for Minnesota farmers suffering economic difficulties to keep their farm.

Mississippi

HB326 — Amends outdated code to increase the maximum annual gross sales for a cottage food operation (from $20,000 to $35,000) before the producer would need to pay food establishment permit fees. Authorizes a cottage food operation to advertise products over the internet. 

New Jersey

AB2371 — Requires large generators of food waste (like restaurants and supermarkets) to recycle food garbage rather than send it to incinerators or landfills. 

AB3865 — Limits return of food from retail food stores during a public emergency.

SB864 — Prohibits sale of single-use plastic carryout bags, single-use paper carryout bags and polystyrene foam food service products, and limits single-use plastic straws. 

SB1591 — Allows alcoholic beverages to be consumed from open containers in the Atlantic City Tourism District. 

SB2437 — Limits service fees charged to restaurants by third-party food takeout and delivery applications during COVID-19 pandemic.

New Mexico

SB3 — Enacts the Small Business Recovery Act of 2020, which provides loans for small businesses suffering during the coronavirus pandemic. 

New York

SB8225 — Authorizes issuing a retail license for on-premise consumption of food and beverage within 200 feet of a church, synagogue or other place of worship. 

AB8956 — Allows a licensed brewery or farm brewery to provide no more than four beer samples not exceeding four fluid ounces each. 

SB1472 — Requires hospitals to offer plant-based food options to patients upon request.

SB7013 — Authorizes the manufacture and sale of ice cream or other frozen desserts made with liquor.

North Carolina

SB290 — The Alcoholic Beverage Control Regulatory Reform Bills, it allows distilleries the same serving privileges as wineries and craft breweries and reduces regulation on out-of-state sales.

Ohio

HB160 — Aid for the restaurant industry to recover from COVID-19 pandemic, the bill doubles the maximum number of Designated Outdoor Refreshment Areas (DORAs) that can be created in a municipality or township. Also allows Ohio’s small wineries to sell prepackaged food without regulation from the Ohio Department of Agriculture, creates bottle limits for micro-distilleries and permits license holders to sell alcoholic ice cream.

South Carolina

HB4963 — Amends state alcohol code, allows licensed retailers to give wine samples in excess of 16% alcohol, cordials or distilled spirits, as long as they don’t exceed a total of three liters a year.

SB993 — Amends state alcohol code to allow a permitted winery to be eligible for a special permit to sell wine at off-premise events. Also increases the amount of beer a brewery can sell to an individual per day for off-premise consumption.

South Dakota

HB1073 — Authorize special event alcohol licenses for full-service restaurant licensees.

HB1081 — Allows colleges to teach brewing beer and wine classes on South Dakota campuses to students age 21 or older. Brewing must be held off campus as the education institution is not deemed a licensed manufacturer.  Any distilled spirits, malt beverage, or wine produced under this section may only be consumed for classroom instruction or research and may not be donated or sold. 

Tennessee

SB2423 — Allows alcohol sales at the Memphis Zoo.

SB1123 — Encourages farmers who produce raw milk to complete a safe milk-handling course. 

Utah

HB134 — Legalizes the sale of raw butter and raw cream in Utah;

HB232 — An agri-tourism bill that allows farms and ranches to host events that include food that would not need to be prepared in a commercial kitchen. Farmers must apply for a food establishment permit to use their private home kitchen.

HB399 — Changes to the Alcohol Beverage Control Act, prohibits advertising that promotes the intoxicating effects of alcohol or emphasizes the high alcohol content of an alcoholic product.

HB5010 — The COVID-19 Cultural Assistance Grant Program, which appropriates $62 million for struggling arts, cultural and recreational organizations and businesses across the state. 

HB6006 — In response to the coronavirus pandemic, the bill amends the Alcohol Beverage Control Act, delaying the expiration date of the retail licenses set to expire in 2020 for places selling alcohol. Also permits alcoholic beverage licensees at international airports to change locations if needed.  

Vermont

SB351 —  A coronavirus relief bill which authorizes $36 million for agriculture and forestry sectors.  

Washington

HB2217 — An update to Cottage Food Law eliminates the requirement that a home address must be put on a food label. 

HB2412 — Increases amount of additional retail licenses for a domestic brewery or microbrewery from two to four, and directs health department to adopt rules allowing brewery owners to allow dogs on brewery premise

SB5006 — Allows sale of wine by microbrewery license holders.

SB5323 — A bill eliminating single-use, plastic carry-out bags

SB5549 — Modernizing resident distillery marketing and sales restrictions. Allows distilleries to sell products off-premise, similar to breweries and wineries. 

SB6091 — Continues work on the Washington Food Policy Forum, including support for small farms and increasing the availability of food grown in the state.

West Virginia

HB4388 — Removes outdated restrictions on alcohol advertising, limiting the Alcohol Beverage Control Commissioner’s authority to restrict advertising in certain advertising mediums, such as at sporting events and highway billboards. 

HB4524 — Making the entire state “wet,” permitting the off-premises sale of alcoholic liquors in every county and municipality in the state.

HB4560 — Permits licensed wine specialty shops to sell wine with a gift basket by telephonic, electronic, mobile or web-based wine ordering. Establishes requirements for lawful delivery.

HB 4697 — Removes restriction that a mini-distillery use raw agricultural products originating on the same premises

HB4882 — Allows unlicensed wineries not currently licensed or located in West Virginia to provide limited sampling and temporary, limited sales for off-premise consumption at fairs, festivals and one-day nonprofit events “in hopes that such wineries would eventually obtain a permanent winery or farm winery license in West Virginia.”

Wisconsin

HB1038 — Bans customers from returning food items during a health pandemic or emergency, dissuading people from stocking up on too many supplies.

SB83 — Increases sales volume of alcohol by retail stores from four liters per transaction to any quantity.  

SB170 — Allows minors to operate temporary food stands without a permit or license.

Wyoming

HB82 — Authorizes a microbrewery to operate at more than one location. The local licensing authority may require the payment of an additional permit fee not to exceed $100.00.

HB84 — Authorizes the sale of certain homemade food items that do not require time or temperature control. These include but are not limited to: 

but is not limited to, jams, uncut fruits and vegetables, pickled vegetables, hard candies, fudge, nut mixes, granola, dry soup mixes excluding meat based soup mixes, coffee beans, popcorn and baked goods that do not include dairy or meat frosting or filling or other potentially hazardous frosting or filling;

“non-potentially hazardous” (no dairy, quiches, pizzas, frozen doughs, foods that require refrigeration and cooked meat, cooked vegetables and cooked beans). Allows someone other than the producer to sell the food, as long as food is not sold in a retail location or grocery store where similar food items are displayed or sold. Food must be labeled with “food was made in a home kitchen, is not regulated or inspected and may contain allergens.”

HB158 — Allows microbreweries to make malt beverages at multiple locations rather than one as deemed in current law.