Friday, June 20, 2008

Reason #9: Can I Get A Ruling?

Anyone know about growlers? Growlers are jugs of draft beer, filled and capped at the retailer level (bar, restaurant, club, brewpub), that have become popular since the rise of craft-brewed beer. I've got one in my fridge right now; some Grisette I bought at Sly Fox last week (and very nice: dry, refreshing, kind of like a spicier, brisker saison, just had some with lunch).

I remember buying beer by the pound this way in Kentucky back in the 1980s: bring in your jug (I had a plastic milk jug, cleaned out and dried), have it weighed empty, fill it from the tap of your choice (I got Busch, just for the experience), have it weighed full, and pay the poundage fee on the difference. Brewpubs and the bars and bottleshops that do sell growlers in the Commonwealth generally only fill two sizes, half-gallon and two-liter, which simplifies the pricing.

The devil is in the details. Some places will fill practically anything; my Sly Fox Grisette, for instance, is in a growler clearly labeled as Iron Hill. Some places will not fill anything but their own growlers; not even unlabeled ones. Some compromise by slapping their own label on whatever growler you bring in. Some places insist on "sealing" the screw-on caps with a heat-shrink plastic band or tape; some don't. Some places won't do it. Weyerbacher, for a while, would only fill gallon growlers.

Why all the confusion? Check the Code...I dare ya.

Reason #9:

What to do about growlers?

This is a very small thing, to be sure. Growlers are a tiny little part of a relatively small niche of Pennsylvania's beer sales, which are about as privatized as it gets in the Commonwealth...but even here, the PLCB gets involved. Talk to different brewpub servers and brewers, talk to bar owners, talk to deli license guys, and you'll soon find out that the PLCB has all kinds of rules about growlers.

Or do they? I've been combing the PA Liquor Code for the past week, and I've got a request into the LCB itself. But I can't find any reference to this kind of off-premises sale of draft beer --about labeling, or sealing -- except for this, about containers and packages from the manufacturer which does kind of mention it, in context of sales at breweries and brewpubs:

SECTION 4-440. Sales by manufacturers of malt or brewed beverages; minimum quantities

No manufacturer shall sell any malt or brewed beverages for consumption on the premises where sold, nor sell or deliver any such malt or brewed beverages in other than original containers approved as to capacity by the board, nor in quantities of less than a case or original containers containing sixty-four ounces or more which may be sold separately; nor shall any manufacturer maintain or operate within the Commonwealth any place or places other than the place or places covered by his or its license where malt or brewed beverages are sold or where orders are taken.


As for actual filling and selling... There's language about cleaning the taplines, about putting clear labeling on the tap knobs, about off-premise sales...but nothing about growlers.

Until I hear otherwise from the PLCB, I'm going to have to assume that there is no allowance for growlers in the Code other than that they should be at least 64 oz. That in itself would be fine: why exactly do we need such regulation? The bartender almost always fills the thing right in front of you, so you know what you're getting and labeling would be superfluous (though useful if you were getting multiples: "Licensee shall provide a Sharpie and labels so customer doesn't open the Pilsner instead of the Maibock", now that would be a good law), the cleaning is usually up to you as much as to them.

But the problem is...if there is no law about growlers, what's all this stuff brewers tell me they're hearing from their local enforcement officer? "Interpretation"? Of what? Tea leaves? There is no law to interpret! All you're really doing is selling a big glass (or small glass keg), so there's no regulation needed, but where do these guys get away making stuff up?

The PLCB should be abolished because of the arbitrary nature of the interpretation of the PA Liquor Code, brought on by the density of the Code and the nigh-unrestricted power of the local PLCB enforcement agents. Growlers are harmless sales of beer; any policy on their sale should be left up to the individual licensee.

Common sense in the Code, common sense in its enforcement. That's what's needed.

Photo credit: Adem Tepedelen (thanks to Scott @ East End for permission!) *and I did edit the original post: thanks to Scott again for pointing me to that 64 oz. reference.

9 comments:

Anonymous said...

I think the growler issue is more of how a particular PLCB enforcement agent interprets the TTB federal labeling laws and not the states

http://www.ttb.gov/beer/beer_regs.shtml

Unfortunately these are also written with a lot of room for gray area.

Bill

Lew Bryson said...

All those regs seem to be about brewer labeling; what about the PA bars that are selling growlers? And, of course...what's a PLCB enforcement agent doing interpreting TTB regs?
It's all about the gray. I'd like to see some common sense law on growlers that acknowledges that they are substantially different from other packages. Some folks argue that not having law on growlers is a good thing: what's not prohibited is allowed. I see it as a playground for enforcement agents, and confusion for retailers and customers...also known as taxpayers and citizens.

Anonymous said...

I think that the TTB brewer labeling is where the room for interpretation come in. If you read part C of this section of the TTB labeling code, it could pretty easily be interpreted that filling someone else's growler with your beer is in violation of the law.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d959ad3fa298605cf7f6636f8819fb32&rgn=div8&view=text&node=27:1.0.1.1.5.3.41.2&idno=27

I have always found the part about Pa bars selling growlers odd. Not that they do it, but they don't seem to get the same amount of attention doing it that the brewpubs do.

I agree with you that we do need some growler specific laws. I've seen more than one occasion where a bartender had to explain to a customer that although what they did in another brewpub was perfectly legal there, according to their agent it's not at their place.

I would however disagree with your questioning about a PLCB agent enforcing TTB regs. Isn't that like asking why a city police officer is enforcing state or federal laws? I'm pretty sure it's part of their job. Once we clean up our code lets go after the TTB :)

Bill

Lew Bryson said...

It really hinges on what the agent decides to see a growler as. If it's equivalent to a bottle or keg, then it has to be fully labeled. If it's more like a cup -- with a lid -- then it needs no label. If a brewery that is not a pub is selling growlers, it would seem it needs something more than a brewpub or a bar. If, if, if. Growlers are neither fish nor fowl, they are a separate case, and we need a definitive, common-sense regulation on them, not an interpretation or opinion. We have too many of them now.

But I don't think PLCB agents are responsible for enforcing ATTTB regs; I think a better analogy would be a PA Dept. of Revenue officer doing a federal tax audit. Doesn't happen. Throw in the 21st Amendment booze law separation barrier, and it's even more so.

Chris Hapka said...

Okay, you amateur lawyers. Disclaimer: you're not my client, I'm not your lawyer, this is all off the top of my head and for purposes of discussion and if you rely on me with your business on the line, you're crazy.

Lew, the regs you're citing deal with sales by breweries ("manufacturers"). These clearly are not the rules that apply to brewpubs or bars, since they don't let you sell beer on tap or in anything less than a case.

Look a little ways down and you'll see Section 4-442, which says:

"No retail dispenser shall purchase or receive any malt or brewed beverages except in original containers as prepared for the market by the manufacturer at the place of manufacture. The retail dispenser may thereafter break the bulk upon the licensed premises and sell or dispense the same for consumption on or off the premises so licensed: Provided, however, That no retail dispenser may sell malt or brewed beverages for consumption off the premises in quantities in excess of one hundred ninety-two fluid ounces"

In other words, they have to get the beer in approved bottles or kegs, and they can then "break the bulk" (split up the beer in the original container) and sell it in any quantity up to 92 ounces (about 2 and a half liters). So two-liter growlers are legal; filling up your 5-gallon homebrew keg isn't.

Of course, selling for off-premises consumptions requires a special license in some circumstances (Section 4-442(2)). In these cases, the Code explicitly (Sec. 4-442(5)) gives some of this authority to the individual city, meaning the requirements may legitimately vary.

And, remember, even if there's no "law" to interpret, the LCB is authorized by law to issue regulations as well governing the conduct of licensees. I don't know if there are any growler-specific regs, but there may well be.

Lew Bryson said...

Thanks, Chris, but that just brings up more questions.

First, isn't a brewpub considered a brewer or manufacturer?

Second, "break the bulk" seemed to apply to cases of bottles and cans when I read it, but I can see that it could be extended to apply to growlers...has the LCB ever actually issued an opinion on that?

Third, are there any labeling requirements on growlers? None are mentioned in 4-442, but again, I'd assume that's because it's meant to cover cans and bottles, which are already labeled.

Fourth, where's that authorization you talk about? Not doubting you, but I'd like to see the language. THAT may be the real nub of this problem for me.

Thanks!

Chris Hapka said...

Lew,

1) It doesn't matter if they're a "manufacturer"; what they can sell to the public depends on under their restaurant license or "brewery pub" authorization is determined by the law on "Retail dispensers," Sec. 442. Otherwise, by its terms, Sec. 440 would outlaw all brewpubs.

2) Breaking bulk just means repackaging. If you split a keg up into draft pints, you're breaking the bulk just as surely as if you split a case into bottles. I doubt the law had growlers in mind, but it doesn't forbid them. Remember that the "original containers" referred to in the law include kegs.

3) As for labeling, don't think about cans and bottles; think about kegs and pints. The LCB can't require bars to label every drink they dispense; it doesn't work for on-premise draft beer and I doubt anyone thought much about off-premise draft at the time the law was written.

4) The authorization is in 2-207(h), 2-207(i), and 2-208(h), where the board is authorized to issue regulations concerning "the conduct, management, sanitation and equipment" of licensed premises, plus 4-446, which specifies that breweries can operate pubs with "such conditions and regulations as the board may enforce." This is a pretty common way of running things; the legislature basses a bill in briad terms and then lets the agency that runs the industry settle the details. Otherwise, every time a question like this came up ("Hey--the law doesn't say anything about growlers!") you'd have to wait for the legislature to pass an official revision to the statute before they could deal with it.

Lew Bryson said...

I guess that last bit is probably what bugs me. The thought of these guys making regs with little or no review process...seems like a real concern.

Thanks for the digging, Chris, much appreciated.

Rich said...

OK, this is a hot one for me. Of all the reasons to get rid of the PLCB...this is my biggest. And you know what, I'd be for keeping them around longer, if they would just do something about the case law. So, this isn't exactly the case law, but it looks like there is some discussion here on breaking up bulk, and that's a big deal with me.

My ultimate scenario is to be able to walk into a "distributor" and walk out with a single bottle of beer. Case law, and minimum qty is just rediculous to me.

This would be so easy to get rid of, just strike it from the current law. But, with the beauracracy, that's a much harder thing to deal with than it sounds...after they tack on 2 million to the general budget to support perverted arts. Not exactly, but you get my point.

My point, the law sucks, and we need it updated, completely. Maybe the first step in getting this done is to pull together a task force of citizens and people who care to overhaul the liquor code. And, just maybe, those people could look into public opinion to see how its done, rather than special interests.