Libation Law Blog

Alcoholic Beverage and Cannabis Regulatory and Legal Updates

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As part of Illinois’s path to re-opening those businesses shut-down or limited by Illinois’s stay at home orders, the state government, through the Illinois Department of Commerce and Economic Opportunity, has released guidelines for a multitude of businesses and business settings to implement in order to re-open. There are plans and kits for retailers, manufacturers, offices, salons, spas, fitness centers, camps, and bars and restaurants, to name a few. The guidelines for bars and restaurants are extensive and you should review them prior to designing and considering your plans for re-opening to ensure compliance as deviations from the guidelines might…
The State of Illinois passed a bill expanding alcoholic beverage consumption options in its session last week. House Bill 2682 –  which has passed both branches of the state legislature and should be on its way to Governor Pritzker soon, allows those alcohol sellers holding a state “retailer” license (this new legislation uses the term “retailer licensee” but probably meant to use “retailer’s” as that’s the actual defined term used in the Liquor Control Act, but they didn’t so that’s actually open to interpretation now) to sell “cocktails” or “mixed drinks” (these two things are defined as the same…
Codes of responsible advertising rarely make room for innovation and humor. The typical inception and evolution of a code involves an industry pressed by regulators and legislators for change based on some issue or problem the public perceives and that outcry and reporting has brought to a fevered pique. The industry generally says “hey, we don’t need new laws or regulations, we’ll self-regulate, and to prove we can do that, here’s our code that does exactly what you were threatening to pass a law or regulation to do.”  Alcohol is no exception. The responsible advertising codes of the various alcoholic…
We recently posted about a CDC advice document for bars and restaurants reopening that hadn’t seen the light of day on account of being scuttled by the administration. The Washington Post reported at the beginning of the week that the CDC had quietly released those guidelines along with others for many forms of businesses to assist in reopening efforts during the COVID-19 crisis. Here are the updated guidelines published by the CDC. The PDF has a lot of useful information. There are general statements and guidance and resources that bars and restaurants should be familiar with and then there
I want to quickly clear up a misconception that alcohol retailers, and brewers, distillers, and wineries in Illinois may have about running promotions and undertaking solicitations for charities have no statutes to comply with. In Illinois, they do – there’s the Illinois Charitable Trust Act, and there are also rules published by the Illinois Attorney General’s office and regulations of the Illinois Liquor Control Commission to consider when helping others by using your business as a platform for good. So, YES, there are laws about it. It is not simply a regulatory fiat. I recently read an article by…
SBA and the Treasury have released the loan forgiveness application for the Paycheck Protection Program loans that many bars, restaurants, breweries, distilleries and wineries took with the expectation that they’d be pursuing the “forgive” option rather than the extended terms with a low interest rate loan option. You can read the PPP loan forgiveness application form and accompanying instructions here. The SBA promises that it will be releasing further guidance on forgiveness that will assist borrowers in completing their applications and provide further guidance for lenders regarding their obligations. As anticipated, payroll, and non-payroll costs for utilities, mortgage obligations,…
We’ve reported on OSHA’s guidance to bars and restaurants as well as the scuttled CDC guidance for bars and restaurants. The OSHA “tips” left much to be desired and the CDC guidance wasn’t actually published, but, thankfully, the FDA has been doing some hard thinking on COVID-19 safety and published their “Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic” (don’t let the title fool you, these apply even if you never shut down). In addition to detailing best practices, the Food and Drug Administration has also provided an accompanying “Food Safety Checklist”…
Upholding the rulings of Granholm and Tennessee Wine, A Federal Court in Indiana has enjoined the Indiana Alcohol and Tobacco Commission from enforcing a section of the Indiana Code that requires in-state residency for a portion of any packaged liquor retail licensee: The challenged statute states: The commission shall not issue an alcoholic beverage dealer’s permit of any type for the premises of a package liquor store to a limited liability company unless: (1) at least sixty percent (60%) of the outstanding membership interest in the limited liability company is owned by persons who have been continuous and bona fide…
On May 8 OSHA released its short “guidelines” regarding bars and restaurants provision of limited services during the COVID-19 epidemic, detailing a somewhat weak list of “tips” and using language no sterner than that it recommended actions. Those guidelines were accompanied by an equally vague and unhelpful infographic. The lack of proper insight and information is unhelpful to many bars and restaurants, especially given the state-by-state nature of operational allowance and the fact that congress has not insulated businesses from lawsuits by their customers or from employees for injuries or fatalities occurring on account of the virus. Interestingly, as…
Through a series of FAQs regarding the processes for the destruction of beer and a recent circular regarding trade practice policies for product returns, credit terms, gift cards, hand sanitizer and manufacturers and distributors donating to retailer charities. The changes in policy/application are effective for issues from March 1, 2020 through September 30, 2020 and could be extended beyond that time period if the TTB deems them appropriate. Regarding the trade practice policies during the COVID-19 epidemic: Newly released Circular 2020-3 reviews current tied-house policies and worries over commercial bribery in light of the current catastrophe befalling the beverage and…
OSHA has released guidelines for bars and restaurants serving the public through takeout or curbside pickup. Much in line with the Occupational Safety and Health Administration’s previous guidance documents for both the manufacturing industry (attention brewers, vintners and distillers) and the guidance for packaged delivery businesses (attention anyone delivering to homes) the “guidance” takes the form of “tips” to help employees and employers reduce the risk of exposure to coronavirus. Taken together with the CDC recommendations these guidelines provide a majority of the current federal “tips” on businesses looking to re-open or with limited on-site operations that involve human interaction.…
The 7th Circuit wasted no time in publishing its opinion in favor of Anheuser-Busch’s defense of its “not made with corn syrup” advertising campaign that reached new heights in Super Bowl advertising fame by drawing a lawsuit from competitor MillerCoors (now Molson Coors) following a “game on” style text exchange between marketing pros right after the commercials aired and following initial claims by the maker of Coors Light and Miller Lite that the advertisements had not impacted profits (claims belied by assertions made in court filings). With a hint of derision, the Court’s short opinion spends more time describing the…
The myriad of updates and issues raised regarding the SBA’s PPP and forgiveness of those loans are predictably difficult to follow. The transitory nature of the current circumstances offers little certainty that today’s FAQs and regulatory guidance will emplace the systems ultimately governing the program, but the statutory language is set and while the SBA and Treasury have great latitude for implementation of further guidance and rules, there is language that they cannot alter and some of the guidance comments have taken on the proportions of mythic folklore. Taking a look at the language of the CARES act, there are…
In a new guidance (link to guidance) published today, the Illinois Liquor Control Commission has authorized the return of wine and spirits purchased during a limited period prior to the current COVID-19 crisis. You’ll recall that there had been a limited right of return authorized for cancelled St. Patrick’s day festivities and that beer returns were authorized shortly after the initial Illinois actions and stay in place orders. Wine and spirits had not been subject to a broader return right until this guidance and it appears that for some reason, they are treated much much differently than beer…
Back in September, the 7th Circuit held firm on a procedural defect in the district court’s order to remand this lawsuit over the 2019 corn syrup advertising and packaging campaign that Anheuser kicked off with the now infamous Super Bowl ads declaring that some MillerCoors beer products utilize corn syrup as part of the brewing process. The district court case has been heated and many of the documents have remained sealed to keep expert reports regarding the exact amount of corn syrup compounds in the final beer products from reaching the public. A point that Judge Easterbrook noted during the…
In case you don’t want to read through this, the majority of the reasoning allowing discrimination between in-state and out-of-state liquor retailers in this opinion rests on the rationale that requiring alcohol be purchased from in-state wholesalers is a legitimate exercise of state power under the 21st Amendment separating in-state and out-of-state circumstances and thereby supporting a Commerce Clause violation. SCOTUS and other circuit precedent are interpreted to allow such requirements as proper abrogrations of the Commerce Clause authorized by the 21st Amendment.  The basic legal analysis is that because dicta allows a three-tier system and because a wholesaler requirement…