In a recent opinion showing the 21st Amendment and state franchise laws must work within the confines of the Commerce Clause a New York federal court has granted a second motion to dismiss the complaint of a New York beer importer and wholesaler finding that because sale of the beer (transfer of title and payment) took place outside New York, the state franchise law did not apply and could not help the wholesaler keep the rights to distribute the beer when a new importer started importing and selling the beer to other wholesalers in the state.

We previously wrote about…
Continue Reading Court provides stark reminder to liquor and beer distributors about why FOB terms matter: the location of title transfer or sale can determine whether you have franchise protection thanks to the Dormant Commerce Clause.

In a lesson for beer distributors in contracting with importers of foreign beer, a Federal Court recently denied an injunction to a beer wholesaler looking to keep two Belgian breweries, Brouwerij 3 Fonteinen and De La Senne in its portfolio after a new importer started importing the beers and began selling them to a different beer distributor in the territory in Ohio.

The facts asserted in the memorandum from the Court detail the history of how the brands came to be with a new importer. The beer distributor, Cavalier Distributing, distributed both lambic brands prior to 2020 through a relationship…
Continue Reading Court rules beer franchise law may not apply to foreign breweries (and their beer) where wholesaler did not engage with foreign breweries or implicate them in contracting with their U.S. importer for distribution.

In addition to what we generally think of as the “regular” reasons for terminating an alcoholic beverage franchise agreement without cause: bankruptcy, fraud in the dealings between a wholesaler and a manufacturer/supplier, suspension or termination of a distributor’s license or permit for more than 30 days, Ohio has a provision allowing successor manufacturers of wine and beers (Ohio is a control state, so the state of Ohio handles spirits distribution)) to terminate an existing relationship with a beer or wine wholesaler within 90 days of coming to the ownership of the brand of beer or wine (O.R.C. §1333.85):…
Continue Reading Court finds winery and distributor continued discussions sufficient to show intent to extend timing under statute allowing transfer following brand acquisition by new owner.

When last we wrote, things didn’t look so good for Pabst’s Olympia Beer – they had been fighting a class action alleging damages because consumers were deceived by their “It’s the Water” printed advertising and packaging slogan. They got there after removing “pure mountain water” advertising from their website. The claim that the Court allowed to move forward was that the misimpression that all the beer was made with water from Washington State was actionable (this was based on the waterfall pictures and the “It’s the Water” slogan on the packaging). For those unfamiliar with how class action false…
Continue Reading Yes, changing your advertising and discontinuing your beverage can make a difference: Court nails coffin shut on Olympia Beer class action over “It’s the Water”

When we first wrote about this matter back in February of 2021, it was to tell you that CANarchy had won a challenge to the Texas Alcoholic Beverage Commission’s interpretation of a Texas alcoholic beverage control law limiting the right of breweries to sell beer to go from their premises to those breweries that do not make more than 225,000 barrels of beer annually “at all premises wholly or partly owned, directly or indirectly,” by the brewer.

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Continue Reading 5th Circuit’s pun-filled opinion upholds CANarchy’s right to sell beer to go in Texas because it leases and does not “own” most of its breweries across the country.

Following an initial first-round publication (now edited) and two rounds of comments (here and here), the Illinois Liquor Control Commission has now provided the Joint Committee on Administrative Rules with a second publication and partially edited proposed Administrative Rule governing alcoholic beverage couponing and rebate promotions between liquor manufacturers and distributors and retailers. Here is the link to the updated new proposed rule on alcoholic beverage coupons in Illinois.

The new rule addresses three different types of rebates/coupons/promotions:

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Continue Reading Selling alcoholic beverages in Illinois? Retailers, wholesalers, distilleries, breweries and wineries should get familiar with the soon-to-be new rule regarding alcoholic beverage promotions involving coupons and rebates; scan backs are prohibited.

The Court of Appeals of Maryland has affirmed a lower appellate court’s reversal of a win that Pabst had against a Maryland beer wholesaler under Maryland’s beer franchise law, the Maryland Beer Franchise Fair Dealing Act. The case is Pabst Brewing Co. v. Frederick P. Winner, Ltd. (link to opinion).

We reported on the lower court case back in May of last year. At that time the Appellate Court was faced with ruling on an appeal brought by a beer distributor, Frederick P. Winner, Ltd., that had lost a district court case to Pabst following Pabst’s termination…
Continue Reading Maryland high court rules against Pabst and limits “successor brewer” under beer franchise law to different or new licensees finding it does not include change of control through new parent companies

Judge Friendly often proved the power of an articulate and well-reasoned dissent. His dissents led to Supreme Court review, en banc consideration, and future policy and precedent. Judge Wilkinson has a Friendly-esque track record and his recent dissent in a dormant Commerce Clause wine retailer shipping challenge may lead to further review of the 4th Circuit’s decision in B-21 Wines, Inc. v. Bauer (link to opinion (and excellent dissent)).

B-21 Wines involves a dormant Commerce Clause challenge to North Carolina’s discriminatory practice (all judges in the opinion agreed the practice is discriminatory) of allowing in-state wine retailers to ship…
Continue Reading In wine retailer shipping case, 4th Circuit panel splits over proper test for Twenty-first Amendment dormant Commerce Clause challenges and interpretation of holdings in Granholm and Tennessee Wine. Bonus: we have the briefs and appendix for you.