FDA revisits proposed ruling on brewer's grains

Cattle and Beef Markets
Apr 21, 2014

The Food and Drug Administration (FDA), has agreed to return to the drawing board after a proposal to enact regulations governing the use of brewery and distillery byproducts as livestock feed drew considerable opposition from both industries. According to both brewers and livestock producers, had the regulations been imposed as written, it would have drastically hampered the ability of cattle producers to utilize these byproducts, potentially ending a long running relationship between the two industries.

Known to producers as brewer’s or distiller’s grains, and to members of those industries as “spent grains,” the byproduct grains are a waste product of the fermentation process. Whether the end result is beer or ethanol fuel, byproduct grains are produced, and are discarded by the brewer, unless they can be used for livestock feed. As a feedstuff, brewer’s grains have proven a cost-effective source of protein and energy, and their use in feedlot rations has increased in recent years, as has their use as a supplement for adult cows and developing cattle on the ranch.

In January of 2011, the Food Safety Modernization Act (FSMA) was passed into law. Hailed by the FDA as the most sweeping reform of food safety laws in 70 years, it was designed to shift the focus of the FDA from response to prevention of food contamination. As part of this shift, it called on the FDA to establish food safety standards for animal feed. In October of last year, the FDA first proposed a rule requiring facilities that distribute animal feed to establish food safety plans, similar to those used in the production of human food.

Under this regulation, a brewer providing their spent grains to a local rancher would be classified as a producer of animal feed, requiring them to maintain a written food safety plan, prevention controls for likely hazards, and procedures to address any contamination, all separate from the records already required of them as brewers of a product for human consumption.

While breweries were specifically exempted when the FSMA was passed in 2011, the FDA later interpreted that exemption as ending when the spent grains were separated from what would later become the finished beer.

“Their interpretation was that, because the spent grains were not alcoholic beverages themselves, and they weren’t in a packaged form that prevented any human contact, the agency concluded that the regulations would apply, despite the exemption,” says Brewers Association Director Paul Gatza.

The response from the brewing industry was immediate, calling the regulations onerous and unnecessary. “The whole idea of a brewer being required to put in systems that cost more than putting the grain in a landfill is silly,” says Gatza. “It was a solution to a problem that doesn’t exist. We haven’t heard of any circumstance where there have been problems with cattle consuming spent grains.” Gatza and the Brewer’s Association represent the small craft breweries now ubiquitous across the nation. According to Gatza, 90 percent of these breweries give their spent grains to local ranchers at no cost, simply to avoid paying to put the material in a landfill. The proposed regulation, he says, would force many of these breweries to throw away their spent grains, costing millions and filling landfills with otherwise usable material.

Because the material is very wet, he explains, long distance shipping is impractical. With the increase in local breweries, a common arrangement has arisen wherein a single ranch will contract with a brewery for its spent grains, picking them up at regular intervals. According to Gatza, while the arrangements may be fairly recent, the practice of feeding spent grains to livestock is likely as old as the brewing process itself. “We’ve got this nice little closed loop with the farmers,” he says. “It’s been a symbiotic relationship that has worked well for hundreds of years.”

During the public comment phase of the FDA’s proposal, roughly 2,100 negative responses were logged from brewers, cattle producers, and distillers. In addition, several members of congress became involved, arguing that the effects of the proposed rule did not match their original intent when they passed the FS- MA. “I support a robust framework of smart regulations that minimize unnecessary risk and keep our food supply safe,” wrote Senator Mark Udall (D-CO). “This particular part of (the regulation), while well intentioned, does not seem based on evidence of risk or hazard. I hope FDA will reconsider its initial interpretation and formally review the body of evidence that exists in abundance on this particular topic to determine if in fact spent brewers grains warrant designation as animal food.”

“The fact that the FDA would take such a drastic step that threatens the symbiotic relationship between these two industries is absurd,” wrote Congressman Greg Walden (OR-R) in a similar letter. “The fact that breweries already operate under numerous regulations and in a sterile environment raises questions about the need for such steps to be taken.”

As a result of the backlash, FDA announced last week their intention to revise the proposed rule, and resubmit it for review at some point this summer. Following a conversation with FDA officials, Gatza indicates that they appear to be headed toward a more manageable solution. “They indicated verbally over the phone to me that it is not their intention to have that grain end up in landfills, but what they do want is to make sure that it’s basically safe,” he says. “They’re likely going to require some type of verification process of (the brewer’s) processes for storage and pick up. In some cases, it may end up resulting in some equipment upgrades, such as food grade containers.” Beyond that, says Gatza, it is difficult to predict what the FDA’s final decision will be. “They may do a blanket exclusion,” he says. “They may also make suggestions to the industry, which people would likely follow. We’re all looking to behave in a manner that ensures safety.” Despite the uncertainty, Gatza is hopeful that the new revisions will result in a rule that both brewers and ranchers can live with. “It looked like it was headed down the path of overregulation,” he says. “Now it looks like it’s heading down a path of some regulation.” — Jason Campbell, WLJ Correspondent