Category Archives: Beer Law

California Beer Bills: Round-Up of Proposed Beer Laws for 2014

The following is a list of bills introduced recently in the California Legislature and some summary information about what they would do. The most interesting bill on the docket, in my opinion, is AB 2010 due to the June amendment. A bill originally focused only on beer returns across the 3-tier system now includes language that limits the total number of duplicate licenses a brewery can obtain in order to run “branch offices” like the Stone Store in Pasadena.

Coupon-users, underage students, retailers stuck with off beer, and manufacturers sick and tired of people mutilating their metal kegs may be interested in these bills. April 2014 was unofficially California Craft Brewery Month, though the only fanfare that it received, as far as I can tell, was my updates on Twitter and this here blog post.

The bills are easily searchable on http://leginfo.legislature.ca.gov/ using the keyword, “beer,” or of course, the bill number.

AB 2609–Bill to re-allow homebrewer organizations to host homebrew events that were inadvertently outlawed last year by AB 1425. 

 

AB 2010–Introduced by Assembly Member Gray Feb 20, 2014

An act to amend BPC § 23104.2, and with a very recent amendent (6/12/14) repeal and add a new § 23389. The Senate Committee on Governmental Organization voted aye and now it sits with the Committee on Appropriations with a hearing date on 8/4/14.

This addition provides new language entirely  unrelated to returns for quality issues. It would provide a new structure for issuing duplicate licenses to that breweries can run “branch offices” (e.g., the Stone Store in Pasadena) that sell the brewer’s beer as though it is a brewing premises under the same license as the main brewery. Manufacturers would be limited to 6 duplicate licenses, two of which could be attached to a premises with a bona fide eating place (giving the brewer the ability to serve beer and wine from other producers under specified conditions).

The bill would allow retailers to return beer with “product quality issues” to sellers (and those sellers to manufacturers or importers). This would extend a current exception for beer that is recalled or that presents a health or safety issue to the general rule permitting wholesalers or manufacturers to accept return of beer “only if the beer is returned in exchange for the identical quantity and brand of beer.” Returns are permitted in the case of erroneous deliveries or when packaging is broken/damaging before delivery.

After the amendment, sellers can exchange the beer with product quality issues for the same beer if “quality-controlled product inventory” is available. Otherwise, the sellers may issue a credit or deferred exchange.  With the June 12 amendment, the language now specifies that any returns for quality issues are subject to ABC approval. Further, “aging of the beer” is not a condition qualifying it for a return.

 

Assembly Concurrent Resolution 116–Introduced by Chesbro (Co-author Senator Corbett)

The resolution proclaims April 2014 “California Craft Brewery Month.” Great news! As of late last week (May 23), thanks to a unanimous vote, APRIL 2014 IS officially California Craft Brewery Month. Let’s all go back to April and raise a toast.

The resolution has a number of fun WHEREAS clauses recognizing the importance and impact of the craft brewing movement in California. It also makes clear through historical references that California is where this movement got going back in the late 70s. It’s good to have that on the books, because a certain small New England-y state, probably because it happens to have the biggest craft brewery that has been around quite a while, has recently been calling itself the “epicenter” of the craft brewing movement in various news releases.

AB 1928–Introduced by Bocanegra Feb. 19, 2014

This bill passed and will become law, adding  § 25600.3 to BPC.

This bill would prohibit a licensee authorized to sell alcoholic beverages at retail from accepting, redeeming, possessing, or utilizing any type of coupon that is funded, produced, sponsored, promoted, or furnished by a beer manufacturer or beer and wine wholesaler. The bill would provide a definition of coupon for these purposes. By expanding the definition of a crime by imposing additional duties on a licensee under the act, the bill would impose a state-mandated local program.
 
The definition of coupon is “any method by which a consumer receives an instant discount at the time of the purchase that is funded, produced, sponsored, promoted, or furnished, either directly or indirectly, by a beer manufacturer or beer & wine wholesaler.

The definition of “Coupon” excludes mail-in rebates to obtain discounts from beer manufacturer or beer & wine wholesaler. It also excludes coupons funded by spirits manufacturers, winegrowers, and certain other licensees, so long as no “beer or malt beverages” are advertised in connection with the coupon.

AB 2203–Introduced by Chesbro Feb 20, 2014 (amends § 25202)

It is already illegal to obliterate, mutilate, or mark out a manufacturer’s name on “returnable beer containers … or cartons made of wood or fiber board” without written consent of manufacturer. This bill makes it also illegal to do so to metal kegs. In any case, the prohibition does not apply when the beer manufacturer has discontinued business and is no longer licensed to manufacture.

2203 has an 8/4/14 hearing date in Senate after passing through Assembly and looks like it will pass.

AB 1989–Introduced by Chesbro Feb. 20, 2014 (to amend §§ 25658 and 25662 and add § 25668 to BPC).

The bill would provide an educational exception to the prohibition on underage drinking tasting of beer and wine.

The new section would permit “qualified students” to taste alcoholic beverages, without the student or the qualified academic institution being subject to criminal prosecution, if several criteria are met.

  • Student must taste while enrolled.
  • Institution must have AA or BA in enology or brewing.
  • Tasting occurs as part of course required for enology or brewing program.
  • Beverage remains in control of instructor, at least 21 years of age.
  • Must be part of curriculum requirements.
  • A recent amendment clarified the institution need not be licensed provided it doesn’t charge anything extra for the tasting.
  • A “taste” means “to draw an alcoholic beverage into the mouth, but does not include swallowing or otherwise consuming the alcoholic beverage.”

The bill successfully passed through the legislature and will become law.

Federalism’s Tension with the National Love of Craft Beer

Federalism allows the individual states to function as “laboratories of democracy.” Innovations in the law of one state can spill over into others; in some cases creating a national consensus. Since alcohol regulation was largely left to the states after Prohibition, each became such a “laboratory” with respect to alcohol laws.

While the general three-tier system has been in place throughout the country, each state has put its own stamp on it. And some of the laboratories have performed more experiments than others, whose lab equipment still bears the dust that settled shortly after the passage of the 21st Amendment . Some of those experiments have benefitted small brewers because the three-tier system generally “protects” distributors and retailers from big bad manufacturers.

In particular, a strict three-tier system prohibits brewers from selling (or in some cases, even offering samples of) beer from the brewing premises directly to the public. Brewers in those states must employ a distributor to get their beer to retailers if they hope to make any money. Many states, such as California, allow breweries (small and large) to self-distribute and to offer tasting (for profit) at the brewery. And lo, the world has not ended. But it has provided start-ups with an instant revenue stream from the ability to sell beer on-site before they’ve even managed to find local accounts or considered a strategy for expansion/distribution.

It has also provided the public with an excellent way to appreciate their local beer: they can look at the brewing equipment and chat with the brewers and proprietors as they enjoy the beer made on site. Then, they can take growlers of it home. Of course, not everyone gets to enjoy local beer this way. Consequently, not everyone gets to enjoy a great variety of local beer: restrictive beer laws mean fewer would-be entrepreneurs will think it is worthwhile to start up.

In tension with these variations across the states is the national culture of beer appreciation growing rapidly in the United States. Drinkers just joining the ranks are well aware of the best beers across the nation, thanks to rating sites, social media, and the general modern ease of knowing about things beyond one’s own state’s borders.

When such a person reads something like this: “If their strategic plan was based on them opening up a microbrewery then changing state law, then that was a poor strategic plan,” he or she may be confused, even angry. He or she may know about the lines to fill growlers at Hill Farmstead or the Alchemist’s Heady Topper kerfluffle. He or she may have seen the picture of the lady with a 2-month-old baby waiting all night for a shot at some Pliny the Younger. Such a person may want a phenomenon of that nature to occur in his or her back yard.

Georgia’s Senator Jack Murphy added, “The three-tier system has been in place for, what, 80 years now? And what it was designed to do and is designed to do is regulate an industry that needs regulating,” Murphy said. Such a person, upon hearing this, is apt to think, “Federalism Sucks!” (Perhaps not in those terms). An opportunity for civic engagement, I suppose. It does seem that more and more politicians recognize the opening of small breweries as an opportunity to tout job creation, particularly in [rural] places that have not seen a lot that. Consequently, a challenger to an old “three-tier” guy may have a lot of success talking about small business growth, new jobs, and the good small brewing businesses have done for local communities.

While it is good that states can establish their own policies, the online and inherently borderless nature of like-minded communities, such as craft beer nuts, puts federalism in tension with the national mood. One national mood of craft beer is: locally made, locally consumed, [very] locally enjoyed. Small breweries (where they can) have teamed with the food truck phenomenon to turn their industrial-zone warehouse sites into cool, brewpub-esque hangouts. And it is a shame that residents of some states can only be spectators [and tourists] to this aspect of beer appreciation.

Sanctum Brewing Some More Life Into The Heart of Pomona

I had a chance to pop in to visit the best thing to happen to Pomona, craft-beer-wise, since the Rookery opened downtown in the old Joey’s BBQ spot. Sanctum Brewing opened its doors a couple weeks ago, initially only Fridays and Saturdays. Now, Thursdays too. Eventually, they are likely to add Wednesdays (since they can).

The space is just east of Towne avenue, at Palm and Commercial just north of the train tracks. Located in the newly renovated Pomona Packing Plant, the history of the buildings includes housing stone fruit and citrus packing operations going back nearly 100 years.

Sanctum’s Jason Stevens and Scott Lucas acquired a pile of old pallets, and put many hours (days, actually) into reconditioning them as decor for their walls and bar. It looks great. As for the beer, the initial test batches include a mild, two blondes (one with apple), a dubbel, a chocolate stout, and an IPA. I would say very successful for test batches–clean flavors, nothing off (that I could detect). I did not get much apple from the blonde, but the plain one was fine and probably better off without it. With a tasting flight, I did not get to appreciate any one of the beers fully, so I’ll leave my comments on them at that.

From a Law.of.Beer perspective, I had enough curiosity to scan Pomona’s council records regarding the opening of Sanctum. The only thing that stands out from a legal perspective is that a zoning amendment was required before the brewery could operate in its location. The particular industrial zone  did not allow for a brewery that served beer on the premises. After a non-contentious amendment, the city approved Sanctum’s CUP and here they are–a great addition to the city. Welcome, Sanctum!

Maine’s Prohibition on Posting Alcohol Content: Unconstitutional Restriction on Commercial Speech

 Maine’s Liquor Licensing and Compliance agency reportedly ordered a brewer to take down information regarding the alcohol content of beers on offer. The problem with the law is that it is restriction on commercial speech that is neither false nor misleading. Manufacturers should be encouraged to share as much truthful information as possible about their products so that consumers can make rational, informed decisions about what they buy. The Constitutional doctrine developed under Central Hudson says that while commercial speech may deserve somewhat less protection than political speech, for example, restrictions on speech containing information about a lawful product that is neither false nor misleading must serve a “substantial interest” of the state, with the regulation directly furthering that interest, restraining the speech only to the extent necessary to further the interest (tailoring).

According to the article, the law has been on the book since 1937, and has probably never been challenged under the doctrine espoused by Central Hudson. In 44 Liquormart v. Rhode Island, the Supreme Court struck down the state’s ban on advertisement of liquor prices because it unconstitutionally abridged commercial speech. In his (non-majority) opinion, Stevens stated, “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” This statement seems to address precisely what is happening in Maine’s prohibition on alcohol content posting. If Maine’s regulation were construed to be a “flat ban” on posting/advertising alcohol content, it would not likely survive First Amendment scrutiny.

Jester King Craft Brewery, Inc. was a plaintiff in a Texas suit against the TABC (835 F. Supp. 2d 227). There, the District Court recognized the First Amendment protection in the context of Texas alcohol content labeling/advertising laws that plaintiffs claimed were “inconsistent, nonsensical, and [not justified by] any substantial government interest.” The court also held that forcing plaintiffs to call ale “beer” if its alcohol content was below a certain level violated the First Amendment because the state failed to show the regulation advanced a substantial state interest.

In Rubin v. Coors Brewing Co, the Supreme Court struck down a regulation on displaying  alcohol content in certain contexts, finding the regulation not “sufficiently tailored to its goal.” Notably, the court acknowledged that there may be a substantial interest in suppressing “strength wars” (the government’s justification for prohibiting information about alcohol content). However, the regulation at issue was too internally inconsistent to achieve that goal, so it failed the First Amendment test. Concurring, Stevens called the regulation an attempt “blindfold the public,” and argued that truthful information about alcohol content deserves full First Amendment protection.

Thus, it would seem the door is not entirely closed on Maine attempting to justify its regulation on posting alcohol content, but the state would face an uphill, and likely losing battle–probably not one it has an interest in fighting. Jonathan Adler of the Volokh Conspiracy posted an article on February 7, 2014 contending that Maine’s law, under Rubin, violates the First Amendment. Good enough for me to remove the question mark from the title of this post and state it affirmatively (even though the Rubin did not foreclose the “strength wars” argument).

Interestingly, there has been a fair amount of chatter amongst the beer-drinking public about “strength wars” amongst craft brewers. Double-triple-imperial beers are ubiquitous. Many, of course, enjoy a high-alcohol beer for the depth and complexity of flavors it can offer. A high-alcohol beer’s “efficiency” often plays a role in popularity as well. Extreme examples of high-alcohol beer recently made by BrewDog and others bring to mind the arms race played out by Tom and Jerry, with each one topping the other’s newest arsenal acquisition with ever-larger cannons and incendiary devices.

Consumers themselves have reacted to this increase by expressing desire for more “sessionable” beers, the popularity of which continue to rise. Most brewers, along with various imperials and doubles, now seem to have some form of lighter “day” IPA, XPA, or hoppy lager. Stone Brewing Co. announced its “Go To” Session IPA on 2/3/14. Brewers self-regulate the serving of stronger beers as well. As beers approach 7-8% and up, they are far more likely to be served in reduced portions–often 6–8 ounces for the strongest beers.

If the market responds in this way to “strength wars,” there is little reason to believe the government should intervene by “blindfolding” the public in hopes doing so will quell a strength war. The whole thing is silly, anyhow, given that someone interested primarily in strength can just go out and buy the cheapest “handle” of vodka, gin, whiskey, rum, brandy, tequila . . . or order the same at a bar.

Ironic, too, the early fear of strength wars in beer. Some 80 years later, the drafters of legislation such as Maine’s might be surprised to know that for the mass market in beer, consumers themselves have kept the alcohol level nice and low, as it turns out that “cold tasting” beer is necessarily low in alcohol.

The History of Beer Litigation in California: The Case of Would-be Reformers Nelly Smith and Annie Keating

It is not specifically “beer litigation,” but it is the earliest case from California that I have come across concerning laws relating to beer consumption.

In 1869, two “pretty waiter girls,” Nelly Smith and Annie Keating, remained on purpose beyond midnight in a drinking saloon in violation of a city ordinance that banned women  (and live music) from bars or “beer cellars.” They were duly arrested and fined for their violation. The article below, printed in the Dec. 3, 1869 edition of a Sacramento Daily  Union, reveals it was a “test case”: it was intended that the conviction would be challenged on Constitutional Grounds.

TestCase-ExParteSmith

The California Supreme Court opinion was not favorable to women or bar owners, upholding in Ex Parte Smith, October Term 1869, the ordinance as applied to women.

It was challenged on grounds of impinging upon the inalienable right to the pursuit of happiness, as well as the equal protection clause of the 14th Amendment.

The court allowed that perhaps females could gain enjoyment or happiness from being “at such places” after midnight. However, it had no problem dispensing with the “inalienable right” argument, finding that there are many legitimate reasons for governments to interfere with the right to pursue life, liberty, property, and happiness, including laws designed to promote public peace and good order, and public decency and morality.. The Constitution prevents only legislation that injures natural rights in a destructive or unreasonably restrictive manner. Judge Sanderson was willing to defer to the judgment of the Board of Trustees of Sacramento: that the presence of females in saloons after midnight was “of a vicious and immoral tendency.”

Judge Sanderson was likewise untroubled by the law’s uneven effect on men and women. <Side note for fun: the Judge describes military service and jury duty as burdens placed only upon men while showing that the law acts differently upon different categories of people in many acceptable ways>. Satisfied that where a law seeks to prevent a wrong  of a “character which permits of its being done … by one sex and not by the other,” Sanderson refused to countenance an equal protection violation so long as the law is reasonable. After all, in this case, the evil was “exclusively due” to females.

This ruling is of course an artifact that predates the heightened scrutiny a high court would now give to a law discriminating on the basis of gender. Justice Scalia likes morality legislation though–I wouldn’t be surprised if he backed a law like this one.

 

 

Welcome Alosta Brewing; Quick Anecdote on Self-Distribution

This evening I had occasion to visit the 5-days-old Alosta Brewing in Covina, CA. They are Covina’s first microbrewery. (Nearby West Covina features a BJ’s that used to be a prominent brewing location for the company and remains licensed as a brewpub.) The opening process for the fledgling outfit has been long and painstaking, requiring a mid-game switch in locations, much negotiating, and a lot of waiting. After all, though, they are open for business and report a very successful first week so far. At least two local brewers were in the tap room sampling Alosta’s beer when I arrived.

Current offerings include a blonde, a British pale, a strong British pale, and a brown porter. Upcoming are an oatmeal stout and a saison. The brewers/owners include members of the Crown of the Valley Brewing Society, a homebrewing organization in operation since 1988.

While I stood in the tasting room,  a call came in from a nearby pub requesting another keg of the blonde ale. In minutes, a keg was loaded and ready to move. “We can deliver a keg faster than we would be able to get a pizza,” one of the owners exclaimed.

In California, brewers can sell their beer to retail licensees directly without limit. Many states either do not allow this at all, or place caps on the amount of beer that can be self-distributed.

For a brewery just starting up, the ability to be immediately responsive to local retailers seems like an important benefit. As a brewery grows, self-distribution becomes less efficient. But in moments like the one I witnessed, it means the just-opened brewery’s beer can remain on tap through a busy Saturday evening at a popular pub with many great craft tap handles.

Advertising by Autographing

There are restrictions on the freedom of brewers (and other suppliers) to advertise the availability of their products at a particular retailer. For one, they generally cannot initiate the transfer of information–someone must request (such as by clicking “Find Our Beer” on a web page) the information first.

A California ABC industry advisory details one way that a brewer could advertise the availability of its product at a particular retailer proactively. §25502.2 authorizes (until 1/1/16, at least) a supplier to “employ or engage” a person to sign autographs for consumers at an off-sale retail licensee’s premises (a liquor store or bottle shop, for example), and to advertise in connection with the event, including the beer to be featured, and to list the name and address of the retailer in the advertisement. Restrictions include no pictures of the retailer’s premises, and the listing must be “relatively inconspicuous in relation to the advertisement as a whole.”

This privilege may be used twice per year per retailer and must be registered in advance with ABC. While limited, this could be an effective way for small breweries to engage with their local fans (the brewer(s) themselves could sign the autographs) and to announce the availability of their product at a new location (or just to raise awareness about pre-existing availability). If the brewer were to make a special release beer for the event (or make an already popular seasonal beer available first at the event), that may make it even more successful.

Small brewers ought to be able to just send out a Tweet whenever they’re newly stocked at a store or put on tap at a bar, especially those that only self-distribute and are available in limited locations. The market works better when consumers have full information with which to make their choices and there would be no risk of the harms the regulations seek to prevent. For now, though, they are constrained to making use of the limited exceptions such as the “autographing event” one mentioned here. Since it would cost little and foster relationships with local retailers, small brewers should try to make use of it while it is available!

Language Shows Changing Power Relationships in Beer Distribution

Many states have protections for distributors, including some that require a brewer to renew its distribution agreement with the distributor unless the brewer can show “good cause” for ending the relationship. This of course interferes with a brewer’s freedom to choose how its beer will be handled, marketed, and placed for retail sale. The interference, historically, was justified by the power differential between large manufacturers with national presence and the small, independent, family-owned distributors that operated within particular geographic areas.

The three-tier system is now faced with breweries who are the smallest fish in the pond, with distributors being large and powerful (in many cases), and many retailers, too, being quite muscle-y: BevMo, for example.

Language itself can reveal a lot about how power dynamics have changed. One sentence in particular spurred this post:

@CraftBrewingBusiness sent out this tweet:

Stone Distributing takes Mother Earth Brew Co. under its wing http://www.craftbrewingbusiness.com/?p=11460.

Stone is no giant in wholesaling and craft brewers sign with them because they too are craft brewers and have a reputation for working well with fellow, smaller breweries. But the statement reveals a lot about a small brewer’s decision for the first time to cast a wider net and use distribution channels to sell beer. The language also reveals a lot about perceptions of Stone’s distributing business: it conveys the perception that Stone has a benevolent (if gargoyle-y) wing in the first place.

There are other examples as well (also happening to show that positive perceptions of Stone are long-lived).

When The Bruery signed with Stone in 2008, Patrick Rue posted on his company’s blog:

“This last Tuesday I … signed a distribution agreement! I cannot express in words how excited and happy I am about this.”

Now, taken out of context, if that statement were made in a traditional setting, with powerful manufacturers and small, independent distributors, who would be making that statement? Landing a contract to distribute Coors, Miller, or Bud would mean the world to a small company (I’m sure it still does). Now, such agreements can mean the world to small brewers who want to take the next step in growing their business.

A common usage to report a distribution agreement between a small brewer and a distributor seems to be “signed with.” For example, “Santa Clara Valley Brewing, which has been serving up some of the South Bay Area’s best brews, has just signed with California Craft Distributors™ to bring its golden goodness to the Golden State” (link). This phrasing is commonly found in pro sports, to report an individual player signing with an (obviously larger) organization. California Craft Distributors describes itself as “a  boutique distribution company which focuses on hand selling craft beer statewide in California.” This example further highlights the importance of distributor choice for a small brewer–since the laws add protections for the distributor, using other craft brewers or smaller distributors who will focus their time and energy on understanding and promoting smaller brands is key.

It bears mentioning that in CA, small brewers can self-distribute. Thus, they can get away with on-site sales and self-distributing to the local area for a while before they have to make the decision to use a distributor for the next step of growth. Not all brewers have this privilege, or to the extent that CA small brewers have it. Brewers Association has begun collecting information on the various self-distribution rights (or lack thereof) here.

Odd Pub Out? California’s “75” Brewpub

California offers a license designated as “75–on-sale general brewpub.” While it authorizes just what the title suggests, brewing, it does a few other things, too, providing privileges and limitations not afforded to other breweries. Notably, it allows the brewpub to offer distilled spirits, whereas other breweries that have restaurants on premises are authorized only to sell beer and wine by virtue of their type 1 or type 23 license.

The brewpub statute was added to the Alcoholic Beverage Control Act in 1996, under Bus. & Prof. Code § 23396.3. The bill was supported by the California Restaurant Association. It was opposed by California Small Brewers Association (now the California Craft Brewers Association).

Why would a brewers association fight the creation of a new brewpub license? Because the license holder “shall offer for sale on the licensed premises canned, bottled, or draft beer commercially available from licensed wholesalers.” § 23396.3(c). Further, a “a brewpub-restaurant licensee shall purchase all beer, wine, or distilled spirits for sale on the licensed premises from a licensed wholesaler or winegrower, except for beer produced [on-site].” 23396.3(b).

I wonder which tier had the greatest interest in this becoming the brewpub model? With these provisions, the bill also had the backing of distributors.  A 1996 article in SFGate covered the matter. Small brewers were concerned the state was making a move to force them to sell big beer, as expressed by then lobbyist for the association, Bob Judd: “It’s like telling Chez Panisse to sell Taco Bell stuff. Like making Nike sell Florsheims.” California Cafe Restaurants pushed for the bill so it could operate a chain of brewpubs (Alcatraz Brewing Co.), but could not under because it held too many liquor licenses already. Alcatraz Brewing Co. closed recently. Fritz Maytag, then president of the CSBA,  shared his view thusly: “Socially, it just strikes me as a disaster.”

But the fears probably proved largely unfounded–brewers are still free to start up under regular brewery licenses and operate a brewpub as well, so long as they do not have their hearts set on a “full bar.” It has not been the most popular type chosen. An informal survey of CCBA-member brewpubs shows about 15% of them choose the 75 license over the 23, not counting repeat locations for the same brewing company. Breweries with a chain of locations do use them, like the original proponent of the license (Oggi’s Pizza has many locations and has had several 75 licenses, though not all remain active; BJ’s still has active 75 licenses in West Covina and Brea–which requires them to brew at least 100 barrels per year on site). This is likely due to two key factors: (1) constraints the license places on expansion–the 75 brewpub can produce no more than 5,000 barrels of beer annually; (2) the license cost–12 grand for a new 75 license, compared to a mere $100 for a new 23. As of June 30, 2013, there were 109 type 75 licenses issued in California. There were 371 type 23 licenses (up to 60k bbs/year) and 34 type 1 licenses (more than 60k).

The license type also constrains interaction amongst craft brewers. While the brewpub can–indeed, must–have other beer available, it can only bring in commercially available beer through a licensed wholesaler. Thus, it cannot have a “guest tap” from a type 23 brewery that only self-distributes.

This is not the case with type 23 or type 1 brewpubs (standard breweries that also have a “bona fide eating place” on site–such as Stone Brewing Co. or Pizza Port). They can put on tap the beers of brewers who only self-distribute . Take a look at Beachwood BBQ & Brewing’s “hopcam” to ogle what delights await you there, including beers from breweries whose beers are not available through a licensed wholesaler. The same goes for Stone Brewing Co.’s generous guest tap list.

Since many craft brewers do distribute through wholesalers, consumers can find craft beer not brewed by the brewpub on tap at type 75 breweries (TAPS, for example). What they will not find, however, is a direct exchange from brewer to brewer, because the middle tier must intervene. These three-tier regulations were originally put in place to prevent “tied houses,” where a supplier manages through financial interest or inducement to force a retailer to exclusively deal in that supplier’s brands. In the 21st century, some of these rules have hampered craft breweries’ freedom to “untie” their houses and offer a greater variety of locally produced craft beer–especially beer from the smallest members of the brewing community who have yet to access, or who have no plans of accessing, the wholesaler channels of distribution. The type 75 brewpub is an example of just that.

Growlers: Filled with Love, Fraught with Confusion

An article posted on the Florida Beer News website attempts to clarify the ambiguous law governing who can fill what sizes of growlers in Florida. Ultimately, aptly named Brewer concludes that a recently issued waiver will not solve the problem: comprehensive laws are needed to resolve important questions, such as who may fill growlers and the size and composition of the growlers. The law currently governing, while ambiguous, appears to hinge on “packaging” language in the statute. Since retail stores for on-site consumption do not package products like breweries do (they just buy pre-packaged goods and dispense them to customers), this distinction may have led the ABT to order a beer and wine bar to cease growler fills. However, a few years later, a retail store selling for off-site consumption applied for a waiver, and received it, leaving the ABT’s official stance on growler fills regarding any other retailers in Florida unclear.

What started as a simple attempt to allow 64oz growler fills in the state turned into somewhat of a kerfluffle when a state congressperson represented other interests by adding several provisions to a bill that became far less friendly to small brewers. In the end, neither the simple 64oz growler provision nor the add-ons are likely to become law–at least not this term. Brewers’ Law has a number of excellent write-ups that track the story.

Some states do allow growlers to be filled by non-brewing retail locations. A recently passed North Carolina law allows standard retail locations to fill growlers–likely leading to a growler fill up at the local grocery store. In Oregon, growlers can be filled at any retail store, restaurant, bar, brewpub, or winery with the appropriate . . . license. The state even publishes a handy-dandy info-sheet that makes the growler situation quite clear. Accordingly, EugeneWeekly.com reports on the development of a “growler rush” in that state. The same goes for ArizonaMontanaMichigan, New York, Washington, and Wyoming as well, thanks to laws allowing properly licensed retail establishments to fill growlers.

Texas appears reversed: certain retailers and brewpubs can fill growlers, but breweries cannot. A Georgia bill (H.B. 314) was introduced early in 2013 that would alter the definition of brewpub to allow limited (288 ounces per person, per day) growler fills. It was tabled by committee in March and has not been acted upon since.

The growler issue is not confined only to beer. Wineries in Washington state, for example, are allowed to fill growlers of wine at the wineries themselves, but not at satellite tasting rooms where no winemaking occurs. For brewers in California, the fact that no brewing occurs on premises is not a barrier to growler fills, provided the brewer has received a duplicate license for the premises. (The Stone Company Store in Pasadena, CA, for example, has no brewing facilities but operates under a duplicate license giving it the same privileges to sell beer from the site as the brewery itself has).

California recently resolved some ambiguities that had arisen as to the filling of one brewer’s growler at a different brewery. The California Craft Brewers Association has a July 9, 2014 blog entry titled “Growlers – Q&A” with some good information on CA’s approach. A California Craft Beer Association-sponsored bill (AB 647) passed resulting in clarifications for labeling of growlers, including the procedure for filling growlers produced by one brewery (thus bearing its logos and information) but filled at another. On February 13, 2014, the Sacramento Bee reported that not many breweries are choosing to use the new law to allow fills of third-party growlers.

One reason might be that few want to bother with the ambiguity figuring out how to use it: what obscuring device counts as “not easily removable”? Another claimed reason is sanitation. I don’t know about most beer drinkers, but I don’t want to drink out of a dirty growler, so I clean mine pretty well before refilling. I assume that is fairly standard behavior. It’s probably mostly about money, since its business. Russian River, for example, is frank about its stance on the role growlers play in its marketing strategy. Of course, the sale of the growler itself is nice, too. But I have a modest growler array at home, and even that is too much. An entire shelf is taken up with 32–64oz jugs in the garage. Other than for intentional collecting of these things, no decent Californian should have to dedicate a significant portion of home storage to growlers. It’s silly.

While the state still limits growler fills to breweries only, the California Craft Beer Association discussed the potential of change in that area in a panel discussion at its recent bi-annual meeting. One the one hand, more access to craft beer cannot be a bad thing. I would certainly make use my local grocery or liquor store’s ability to fill growlers. On the other, I do like the impetus to visit my local breweries provided by the exclusive right to fill growlers, as well as more confidence in fresh beer from clean lines.

The widely varying stances on issues like this reveal the oddities that result from leaving the regulation of alcohol primarily to each state. There are 50 “laboratories” out there each brewing up their own solutions to the orderly regulation of alcohol production, sales, and consumption.