Latest Compliance News and Information
APPROPRIATIONS LAPSE NOTICE CESSATION OF TTB OPERATIONS
WITH LIMITED ACCESS TO www.ttb.gov
Due to the lapse in government funding, only websites supporting excepted functions will be updated unless otherwise funded. Our TTB website, www.ttb.gov, will be available during this shutdown period, and you will continue to be able to file electronic payments and returns for federal excise taxes and operational reports through https://www.pay.gov/paygov/.
You will also be able to access TTB’s eGovernment applications, including Permits Online, Formulas Online, and COLAs Online, during the shutdown period, but submissions will not be reviewed or approved until appropriations are enacted. In addition, other information on this website may not be up to date, and TTB will not be able to respond to questions or comments submitted via the website until appropriations are enacted.
TTB will suspend all non-excepted TTB operations, and no personnel will be available to respond to any inquiries, including emails, telephone calls, facsimiles, or other communications. The website and operations will fully resume when appropriations are reenacted. TTB has directed employees NOT to report to work and they are prohibited by federal law from volunteering their services during a lapse in appropriations.
Once funding has been restored and the government shutdown is over, we will work to restore regular service as soon as possible.
Beer Shipping Laws Deconstructed
01/08/2018 By: Bob Barnes
With the passage of the 21st Amendment in 1933 ending Prohibition, states (and in some cases, municipalities and counties) were given absolute power to enact their own laws regarding the production, distribution and sale of alcohol. It’s common knowledge that alcohol is highly regulated through every phase of its production, and its marketing and distribution must comply with a host of rules and regulations regarding how businesses can distribute their products – including how they are shipped.
Shipping Beer Between States
While all states allow the production of beer, the laws surrounding the shipment of alcohol vary from state-to-state. A handful of states allow shipments into and out of the state, while some only permit shipments from breweries within the state. Others restrict sending beer from breweries in-state but allow beers to be sent out of state, and still more only allow shipments sent out of state. There is little to no consistency on these states’ decisions, and requirements are often vague, convoluted and unclear.
Currently there are only 7 states – Nebraska, New Hampshire, North Dakota, Ohio, Oregon, Vermont and Virginia (and the District of Columbia) – that allow direct shipment from a brewery to a consumer. This means that breweries within these states are allowed to ship directly to consumers, and breweries from outside these states are allowed to ship directly to consumers within these states. There are 10 states that allow out-of-state retailers to ship directly to consumers. When beer crosses state borders, one must take into consideration the laws for both the shipping state and the receiving state.
Who Can Ship Beer?
As part of the three-tier system, only licensed wholesalers may distribute beer, and only licensed retailers can sell it to consumers. The United States Postal Service strictly bans the mailing or shipping of any alcoholic beverage anywhere, although some individuals mail products on the sly by labeling the shipment as something other than alcohol such as "yeast samples in aqueous solution."
There are only two legal ways to ship alcohol in the United States: A retailer must be licensed to sell alcohol by a state that permits shipments in and out of that state, and they must also have an alcohol shipper’s contract with a shipping company such as UPS or FedEx, both of which will ship to states where it is legal and with a required signature from an adult over 21 years of age accepting the package. Officially, as stated in their guidelines, both of the major carriers also will only ship beer from one business to another business and not to consumers, but interestingly, as of July 31, 2017, shipping beer internationally to consumers in several other countries is now allowed by UPS.
Since direct shipping of beer within the U.S. from producers/suppliers to consumers remains prohibited without a process for permitting the shipment of beer directly, private individuals who mail beer through the U.S. Postal Service risk the package being seized and receiving a first offense warning with subsequent offenses resulting in a possible fine or jail time. If shipping through FedEx or UPS, one is only violating the company’s policy, so no criminal punishment would be at risk.
Sound convoluted and perplexing? A company that is trying to sort out the confusion is Compliant Bootlegger (www.compliantbootlegger.com), an organization that is informed on the laws of each state to provide its customers with application assistance so that they are in compliance with laws regarding the manufacture, import or sales of alcoholic beverages. Compliant Bootlegger Founder/CEO Janeiro Cathey says, “As far as the laws themselves, it’s pretty black and white. The complication comes when comparing the states themselves, but each state law is pretty concrete.” Janeiro relates that the first step is obtaining a state license, but before an individual or business does so it must first deal with the Alcohol and Tobacco Tax and Trade Bureau. After receiving a permit, the business must then get licensed in its home state to manufacture or sell wholesale or retail.
Is beer treated the same as wine?
Beer is produced everywhere, and the number of breweries in the U.S. is at a historic high of 5,562, according to the Brewers Association. Wine production, on the other hand, is concentrated in a select few states, such as California, Oregon, Washington and New York. Consequently, several states have shipping laws more favorable to wine, granting out-of-state wineries permission to ship their wine directly to the consumer so that they can experience certain wine regions.
Further bolstering wine’s case was the 2005 decision in Granholm v. Heald, in which the Supreme Court ruled in favor of shipping wine directly to consumers across state lines. Though this ruling was specific to wineries shipping directly to out-of-state consumers, and applied specifically to New York and Michigan, it set a precedent for other states and the shipment of wine in general. Following the ruling, other states have modified their laws to accommodate this precedent. Further discrimination against beer in favor of wine is the fact that, as mentioned previously, UPS and FedEx will only ship beer from and to licensed businesses, but chooses to allow the shipment of wine to consumers nationwide.
What about cannabis?
The (legal) shipment of marijuana is still in its infancy. Perhaps leading the way is California, which has a licensing portal set up for Retailer, Retailer (non-storefront), Distributor, Distributor Transport, Microbusiness and Testing Laboratory (Cannabis.ca.gov). This may suggest the cannabis industry is looking to mimic the three-tier system that is set up in the alcohol industry. A major difficulty will reside in the fact that it is still listed as a Schedule 1 drug federally and not all states have legalized marijuana medicinally or recreationally. But that has been quickly changing, with 29 states currently allowing medicinal cannabis, and 8 states and D.C. legalizing recreational cannabis.
Beer of the Month Clubs
A quick internet search will lead to numerous beer clubs and other marketers offering to deliver beer directly to your door, and the majority of them will deliver to nearly all states with the exception of Utah, which prohibits alcohol shipments via UPS, FedEx or any other delivery service. One beer club informed me that they follow the individual state laws and ship to all states with the exception of Alabama, Kentucky, Mississippi and Utah; and another told me in some states they use smaller carriers other than UPS or FedEx. On its website, beer store Tavour states it only ships to AZ, CA, CO, CT, DC, MA, NE, NM, NV, OH, OR, WA and WI. There are numerous other clubs that list shipments to all states except Utah, even though several of the states legally do not permit shipping. So how do the clubs get around the legalities?
Don’t Ask, Don’t Tell
Despite confusing laws and carrier policies that generally don’t allow it, retailers ship to consumers anyway, and outside of a few exceptions, there appears to be a “don’t ask, don’t tell” mentality as shippers routinely label the container as wine instead of beer. (As a member of the media, I frequently receive samples from breweries, and in each and every instance the package is labeled as wine.) The shipping liability does not rest with the receiver, but rather with a vendor or retailer. If they lose their carrier shipping contract or lose their license as a result of violating state shipping laws, a new one can take their place and plug back into the network, thus creating the opportunity for third-party marketing companies to bypass the legal risk associated with direct shipment to consumers by passing it on to the individual vendors.
It’s worth noting that laws are constantly changing and some states, such as Pennsylvania, have loosened restrictions in recent years. Though it is unfortunate that the Granholm v. Heald Supreme Court ruling in 2005 only applied to wine, and while there is no common-sense explanation to justify treating one type of alcohol more favorably than another, it does show that progress can be made.
One hopes in the coming years that similar action will be taken to lessen restrictions on shipping beer and put it on an equal footing with wine, but a disadvantage for beer is that it does not have the lobbying power that wine currently does.
North Bay Fires Q & A from CA ABC
This information is being provided by the Department of Alcoholic Beverage Control (ABC) to address some of the questions licensed businesses may have following the wildfires. ABC will continue to answer questions as the region strives to recover from this disaster. The Department is committed to being as flexible as possible with our licensees.
The information below is not the only assistance that may be available to licensees impacted by the North Bay fires. Licensees who may have questions can contact the ABC Santa Rosa District Office at (707) 576-2165. The office is prepared to respond promptly to licensure issues, and is located at 50 D Street, Room 130 in Santa Rosa.
Department representatives are planning a stakeholder meeting in the near future to provide outreach information and to assist licensees with questions and issues. The informational session will be held in the Santa Rosa area.
The information is being provided in a question-and-answer format to address the following:
Relocation of Business Operations
Storage of Alcoholic Beverages
Retail License Issues Related to Damaged Products
Tied House Exceptions for Natural Disasters
Waiver of Certain License Fees
Closure of an ABC Licensed Premises
Return of Inventory Back to a Supplier
Sales or Returns by Insurers or Surrendered Licensees
Selling Stock to Other Licensees
Can I relocate business operations following a major fire disaster?
Yes, a licensee whose premises has been destroyed by fire is allowed to carry on business for a period up to 6 months at a location within 500 feet of their premises, while their premises is being repaired or rebuilt.
The license may be transferred to another location within the same county without payment.
An application will need to be filed with the local ABC district office.
The Department may have discretion to extend the period of time and the distance a business may operate at a temporary location pursuant to an Executive Order.
Reference: 24081 B&P, 24082 B&P
What about the storage of alcoholic beverages?
1. Tax-paid wine and beer may be stored anywhere in the state. ABC approval is not required.
2. Distilled spirits may only be stored on licensed premises, including Type-14 public warehouses. ABC approval is not required to transfer from one storage location to another.
3. If alcoholic beverages are stored in a Type-14 public warehouse, ABC approval is not required to transfer them to another Type-14 warehouse or to a private warehouse.
4. Distilled spirits may be stored in a private warehouse approved by the Department if within the limits of the county in which the licensee’s premises are located.
5. If wine is stored in bond, ABC approval is not required to transfer it to another facility. However, approval of taxing authorities (BOE, TTB) may be required.
Reference: 23106 B&P
Can you tell me about retail license issues related to breakage?
Understanding there may be questions involving broken containers of alcoholic beverage at retail licensed business, we are advising there are no provisions in the ABC Act that permit suppliers (manufacturers and distributors) to replace loss due to breakage caused by natural disasters.
Retailers should file a claim with their insurer for the value of their product. Additionally if a retail premise closes for a period that exceeds 15 days, or closes permanently, the law requires them to surrender their license. When they have done so, ABC permits suppliers to pick up alcoholic beverages and credit the account of a retailer who has surrendered their license.
With respect to damaged products, please see below under “Can a retail licensee return its inventory to a supplier”.
Reference: Rule 65 CCR, Rule 79 CCR
Are there any tied house exceptions for natural disasters?
The ABC Act provides a tied-house exception for natural disasters. It provides that a manufacturer or wholesaler may give, rent, lend, or sell, any equipment, fixtures, or supplies, other than alcoholic beverages, to a retailer whose equipment, fixtures, or supplies were lost or damaged as a result of a natural disaster and whose premises are located in an area proclaimed to be in a state of disaster by the Governor.
The section does not apply to transactions that occur three months or more after the Governor proclaims an area to be in a state of disaster.
Reference: 25511 B&P
Will the Department waive any license fees for businesses impacted by the fires?
Yes, in an effort to assist business owners with recovery, the Department will waive certain fees for licensees in the impacted areas. This includes license certificate replacement fees and late penalty fees for annual renewal notices.
Further, any pending administrative disciplinary action will be held in suspense during this time of recovery.
What about closure of an ABC licensed premises?
If a premise closes for a period that exceeds 15 days, or closes permanently, the law requires the business to surrender their license. Licensees can use the ABC-231 form located on the ABC website to surrender their license https://www.abc.ca.gov/FORMS/ABC231.pdf
Once this is complete, suppliers may pick-up alcoholic beverages and credit the account of the retailer.
Reference: Rule 65 CCR, Rule 79 CCR
Can a retail licensee return its inventory to a supplier?
The ABC Act allows for the return of inventory damaged in fires provided they are returned in exchange for the identical quantity, brand, size of container and item.
It should be noted that suppliers are not required to accept the return of alcoholic beverages from retailers.
Reference: 23104.1 B&P, 23104.2 B&P, 23104.3 B&P
What about sales or returns by insurers or surrendered licensees?
The ABC Act permits a licensee who has surrendered or canceled their license to sell their stock of lawfully acquired alcoholic beverages to a licensee or licensees who are authorized to resell the alcoholic beverages.
The licensee can apply with the Department to sell their stock of alcoholic beverages to any licensee or licensees authorized to resell such alcoholic beverages.
An insurer may, after permission has been granted by the Department, take possession of alcoholic beverages, the containers of which have been damaged by fire, and sell them to licensees who are authorized to sell the alcoholic beverages.
Reference: 23100 B&P, 23104 B&P, Rule 79 (c) CCR, Rule 79 (e) CCR
What must someone who surrendered a license do prior to selling their stock of alcoholic beverages to another licensee?
Form ABC-273 must be completed and submitted to the local ABC office https://www.abc.ca.gov/FORMS/ABC273.pdf. This form is the application by a former licensee to sell their stock of alcoholic beverages. The form is needed to request permission to sell the stock of alcoholic beverages that remain in inventory once the ABC license is surrendered or canceled pursuant to Rule 65.
Reference: Rule 65 CCR