Brand Registration and Labels
Recently, the Pa.L.C.B. released a legal advisory opinion addressing the brand registration of brands that are sold only for sales to non-licensees (consumers and not any liquor-licensed business). As you may recall, if you are selling beer at your brewpub or tasting room to non-licensees only, you do not need to obtain a COLA for brand registration in Pennsylvania. However, if you would go this route, your brand registration will be limited to brewery sales to non-licensees for on-premise sales only. The recent legal advisory opinion has changed this process again, for the second time this year.
After discussing the legal advisory opinion with Pa.L.C.B. Malt Beverage Compliance, and receiving confirmation from the Pennsylvania State Police, Liquor Control Enforcement, you may now register your brands for on-premises AND off-premises consumption to non-licensees without obtaining a COLA from the TTB. This applies to off-premises growler, crowler, cans and bottle sales. It is important to note, however, that this ONLY applies to sales to non-licensees. To register, you will simply have to submit a basic label with your brewery’s name on it, and list each brand you are registering. This could be as simple as submitting block letters of your brewery name and hand writing the brand just below the block letters.
As usual, there are inconsistencies between the Pa.L.C.B. policies and the TTB policies. For example, if you are pre-filling any product prior to sale (such as a can, bottle, growler or crowler if pre-filled prior to the request by a customer), the TTB requires and recommends that it contains some mandatory labeling information. This includes: (1) the name of the brewery, location of production, health warning statement and net contents of container. This is not required by the Pa.LC.B., regardless of whether it was pre-filled, but it is something to keep in mind for cans and bottles (because they are usually pre-filled).
However, because this only applies to sales to non-licensees, if you start distributing to licensees, or sign on with a wholesaler for distribution, you will need to register your brands by obtaining a COLA from the TTB and filing that with Pa.L.C.B. Malt Beverage Compliance. Additionally, the TTB requires a COLA for all interstate sales of beer, which means if you sign a distribution agreement with a wholesaler in another state, you will need to obtain a COLA for all products that will be distributed out of Pennsylvania.
This legal advisory opinion also states that there is not a requirement to affix any label or sticker to the growler or crowler once it has been filled by your brewery.
Happy Hour
In another interesting move, the Pa.L.C.B. released a legal advisory opinion that, in effect, frees breweries from the Pa.L.C.B.’s happy hour regulations. To be exact, the legal advisory opinion stated: “breweries are not retail licensees and are not subject to the Pa.L.C.B.’s Regulations pertaining to discount pricing practices, nor are they subject to the Liquor Code’s happy hour restrictions.” This was answered in the context of whether a brewery could have a different pricing scheme for sales to licensees and non-licensees. However, it is clear that the Pa.L.C.B. has taken the position that a brewery, or any other manufacturing license, is not required to follow the happy hour or pricing discount regulations of the Pa.L.C.B. Breweries are now free to discount their beer sales in any manner it sees fit.
Attorney Theodore J. Zeller III is General Counsel to the Brewers of Pennsylvania. Please visit his Liquor Law Blog HERE.
