 DISCLAIMER: This post does not constitute legal advice and is presented for information, education, or entertainment purposes. It is opinion and commentary, and merely attempts to review the alcohol beverage laws and their interpretation to allow you and yours to have the crunkest spring break eva. If you have questions, then please speak to your legal professional or the appropriate regulation authority. Seems like a lot of people are on spring break this week and having a great time. And we are too. At least for the five minutes it took to go through our photo bank to find the picture above to make it seem like we were also on spring break and wishing we were. But, that being said, it is probably as good a time as any to remind you that South Carolina has specific alcohol laws as they relate to Spring Break (sorta, not really since they apply all of the time). But regardless, here are a few things to keep in mind if you’re going to be vacationing in the Palmetto State this Spring (or ever): 1. No alcohol is allowed on any public beach. So, pro tip: find a rich friend who is staying on a private one and have them call the guardhouse to let you in. 2. South Carolina has open container laws, so you can’t take alcohol that you’re actively drinking off of a licensed premises or in a vehicle. 3. Liquor stores are closed on Sundays. They also close at 7 p.m. on Saturday night. 4. Beer pong, flip cup, and other drinking games aren’t legal at bars, so better to play at home. 5. Even though the state’s alcohol laws don’t speak to hard seltzers specifically, they are treated like beer because that’s what the federal government does with them and they are regulated accordingly. So, yes, there are laws when you’re drinking claws. 6. You can still purchase mini bottles (less than 50ml) at many bars and restaurants. If you haven’t visited here since 2006, then hey, free pour like in your state! 7. You can’t buy liquor at grocery stores. A very few have gotten licensed to sell liquor in a separate suite of the building. But you won’t be able to ring up your vodka and OJ at the same time. You’ll have to step outside to a different store and enter into two transactions. So, good news for those with their step counters on. 8. Out for the night? Cool. You can order a drink at a bar or restaurant from 10 a.m. to 2 a.m. Monday through Friday. On the weekend, it’s a little more murkier. On Saturdays, where legal and assuming where you’re imbibing has the appropriate licensing, you’re still on a 10 a.m. to 2 a.m. schedule (although technically, it's until midnight and then Sunday morning from midnight until 2 a.m. and then not again until 10 a.m). On Sundays, it’s probably 10 a.m. to midnight, but remember that some municipalities do not allow for Sunday sales. If you’re catching brunch, just remember you can’t get that Bloody Mary until 10 a.m. in the municipalities that allow it. Same for you kegs and eggers. 9. Going out on a boat? If watercraft is licensed for alcohol, then remember that means the boat only, and not the dock, lot, or buildings around it. It also has to stay in the state’s waters for that three hour tour. 10. Heading to a wedding or other kind of social event while you’re here? Salute! Hope you brought your own alcohol, because if the hosts are providing it, then it can't be a cash bar that doesn’t have a special event permit. And if their choices aren’t up to par, then if you have a case of Heady Topper in the cooler, you’ll need to keep that on ice, because the law says you can only drink alcohol that was bought from a South Carolina retailer. Save it for the after party. Enjoy your stay! BROOK BRISTOW Brook Bristow is a South Carolina-based lawyer at Bristow Beverage Law, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, and intellectual property. You may reach him directly at brook@bristowbeveragelaw.com
0 Comments
 DISCLAIMER: This post does not constitute legal advice and is presented for information, education, or entertainment purposes. It is opinion and commentary, and merely attempts to review the alcohol beverage laws and their interpretation to assist businesses in planning. If you have questions, then please speak to your legal professional or the appropriate regulation authority. Like many, over the last week, you might have heard that non-alcoholic beer maker Athletic Brewing Co. suspended direct-to-consumer shipping of its NA beers to South Carolina due to “the recent legal interpretation by state officials on the unique definition of non-alcoholic beer.” Many were left scratching their heads and complaining about those darn archaic SC alcohol laws once again. But, that left some questions open: (1) What statute? (2) What interpretation? (3) What does this all mean going forward for NA producers like Athletic and other low alcohol producers, such as kombucha makers, their distributors, and retailers? We’d like to tackle that in this blog.  BACKGROUNDThe statute at issue is S.C. Code Ann. 61-4-10, which defines what are considered to be nonalcoholic beverages in South Carolina. It reads as follows: The following are declared to be nonalcoholic and nonintoxicating beverages: (1) all beers, ales, porters, and other similar malt or fermented beverages containing not in excess of five percent of alcohol by weight; (2) all beers, ales, porters, and other similar malt or fermented beverages containing more than five percent but less than fourteen percent of alcohol by weight that are manufactured, distributed, or sold in containers of six and one-half ounces or more or the metric equivalent; and (3) all wines containing not in excess of twenty-one percent of alcohol by volume. Did that make sense? The statute says that that any beer below 6.5% ABV (5% ABW) is considered nonalcoholic? And beers packaged in 6.5 ounce containers up to 17.5% ABW (14% ABW) are considered nonalcoholic? And wines not in excess of 21% ABV are considered nonalcoholic? Huh? Yeah. It’s a little weird, right? All of those beverages clearly contain alcohol, so why would we consider them to be nonalcoholic? Well, we’ll leave that discussion for another day as it is definitely confusing on the surface. For the purposes of this discussion, however, let’s focus on the fact that it says “all beers . . . or fermented beverages containing not in excess” of 5% ABW as being nonalcoholic. Now, perhaps there’s some enterprising future business owners out there that read that and think, “Hey, why I don’t start making kombucha or a brewery featuring only session beers and not have to worry about licensing or taxes?” Well, that’s where the other part of this comes into play. There’s another statute: S.C. Code Ann. 61-4-500. And it says that “a person engaging in the business of selling beer, ale, porter, wine, or a beverage which has been declared to be nonalcoholic and nonintoxicating under Section 61‑4‑10 must apply to the department for a permit to sell these beverages.” In other words, if you want to sell nonalcoholic products, then you’re going to be regulated by the alcohol code, and you’ll need a permit from SCDOR to do that. And that’s exactly what SCDOR is saying in its interpretation. Side Note: this statute is also deemed to be what legalizes homebrewing and winemaking in South Carolina. But notice, while it legalizes wine up to near fortified status, legally, any homebrewed beer can only be up to 6.5% ABV. I did a blog on this years ago that has since gone away, but perhaps we’ll have a discussion about it soon.  THE INTERPRETATION AT ISSUEWhile there isn’t an official communication or policy statement, SCDOR has apparently adopted internal guidance that has been provided to certain folks in the industry that says that the above two statutes bring NA beer and kombucha under their umbrella. That basically says that regulation starts at 0.0% ABV, because South Carolina statute doesn’t set a minimum threshold for alcohol content. So, in SCDOR’s alleged view, you are subject to regulation even if the alcohol content in the produced beer or fermented beverage is zero or small and/or you want to sell such beverages. Now again, this isn't official or published, but appears to be where things are headed. Perhaps something will be released soon. So, in summary:
 BUT WHY KOMBUCHA?Why are we grouping kombucha with beer? Well, under the federal law, that’s how it is treated, so that’s what SC would do as well since our laws are silent on it by name. What’s most interesting about kombucha is that, if it’s under 0.5% ABV, then the Alcohol and Tobacco Tax and Trade Bureau ("TTB"), the federal entity that regulates breweries and alcohol as a whole, doesn’t regulate kombucha makers or make them subject to its regulations or require licensing. So, someone could potentially only have a state brewery permit and pay taxes to South Carolina, but yet have no responsibility to the federal government for the exact same thing on a product that isn’t even 0.5% ABV. But other fermented beverages would also fall under this interpretation as well. This could also complicate things for out-of-state producers, as they are required by the South Carolina application to provide their TTB approval. So, potentially, they could have to apply for a federal approval even if their products don't fall under the TTB's purview. That might not be worth it for them. Something else to consider: while this post isn't intended to be a full legal analysis, there is one item worth noting. The 21st Amendment. Yes, it repealed prohibition. But it also gave nearly complete authority over alcohol regulation to the states. But, many recent court cases giving interpretation to this have made clear that the authority of states is limited by various parts of the Constitution and only extend to "intoxicating liquors." The question would be are NA products and products under 0.5% which are not federally regulated considered alcohol enough to allow states the authority to regulate them under their alcohol regulatory powers? It's a very interesting question to pose here.  WHAT DOES THIS MEAN AND WHAT COULD BE CHANGING?NOTE: SCDOR hasn’t confirmed anything yet beyond registration, but one would think if these businesses have brewery or beer producer permits, then they’d be treated as other breweries are which are subject to those same laws regardless of ABV for products. It's also possible a new permit is created for NA businesses. But that remains to be seen. There's also some interplay with the Department of Agriculture. They are the regulators for cottage foods - i.e., certain products that are made at home and sold at farmers markets directly to consumer. What’s a worst case scenario? Well, if beyond registration, alcohol laws are applied to them, then that could mean that producers need to cease production and sales. It could mean that their distributors won’t be able to sell any more of the producer’s products. It could mean that retailers will not be able to stock these products until they come from licensed producers or perhaps that some retailers need to be licensed altogether. And it could mean that consumers wouldn't be able to purchase these products directly. It could also mean that effective immediately, all of these producers and retailers will have to cease business until they receive the proper licensing, which will take several months to get if they’re located in South Carolina and the money to get their facilities up to code, and only several weeks to get if they’re a producer located out of state. So, until then, no sales, i.e., no money. In this scenario, it wanted to, SCDOR could declare all NA beer and kombucha that have come from unlicensed producers or are sold by unlicensed retailers as contraband and could seize it and sell it. Also, because all of these producers and retailers could be deemed to have been violating the law all along, SCDOR could deny their applications for permits when they were submitted. Hopefully, that doesn’t happen and surely, SCDOR doesn't want to put people out of business. But regardless, a lull could be coming. But, besides a pause in production and sales, there could be some dramatic changes for these kinds of businesses and how they operate. You see, if they were brought under the alcohol code, they would be subject to all of the provisions of the alcohol code that they haven’t been doing before. That means that for producers, if everything applies as it does to normal alcohol producers:
In the case of retailers, remember, the statute also said those who "sell." So, this could have impact on distributors and retailers as well. Now, most are probably already licensed, so it isn't a concern. However, if a distributor or retailer only sold these kinds of beverages and wasn't licensed, then that could be an issue. And there are a lot more retailers out there than there are producers. For retailers, licensing would be required, as well as the payment of tax. On the other hand, there's a scenario where SCDOR creates a specific permit for these producers and/or retailers and doesn't require the payment of tax on something nonalcoholic, although that probably would only apply to excise tax and not retail sales tax. It could then have the authority to create regulations specifically tailored to these kinds of producers and/or retailers and what they're able to do and what they're required to do by law. What would that look like? It's anyone's guess. But, if they followed the TTB's lead, it would mean that only products above the 0.5% marker would get taxed for excise and have regulation put on them. Unfortunately, the South Carolina statutes don't have a minimum, so the regulators would have to go based upon what the law actually says. Regardless, we can probably expect some additional guidance down the road. WHAT COULD HAPPEN & WHAT YOU CAN DOLook, the statutes are what they are. And haven't been brought out into the light until now. But there’s no doubt that there could be a legislative fix to keep what has been the status quo. All that would be needed would be to set a minimum alcohol content for regulation in S.C. Code Ann. 61-4-10. Additionally or alternatively, legislators could eliminate S.C. Code Ann. 61-4-500 which makes nonalcoholic makers or retailers get licensing from SCDOR. As the session winds down in Columbia at the General Assembly, there isn’t time for a stand alone bill. So, anything of that sort would have to be tucked into a bill regarding alcohol to even become law. And there aren't a whole lot of those available at the moment. So, if it doesn’t happen, then this is the new reality. If this is an issue that you’re concerned about, then you can always contact your State Senator or Representative. If you don’t know who your legislators are, then you can use this tool: http://www.scstatehouse.gov/legislatorssearch.php BROOK BRISTOW Brook Bristow is a South Carolina-based lawyer at Bristow Beverage Law, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, and intellectual property. You may reach him directly at brook@bristowbeveragelaw.com
 When living the dream becomes a nightmare...It’s finally happening. You’ve spent years perfecting your craft, you’ve designed the perfect branding concept that’s unique to your vision, and you’re ready to open your own production facility. The last thing you need to do is make your brand official by registering your trademark. Then it happens, your trademark application is denied. Why? It turns out that some minute detail of your brand—a color, a symbol, maybe just a word—is too similar to another brand in a similar industry. Sure, you can open without trademarking your brand but, depending on your location and distribution range, it’s just a matter of time before the entity with the officially trademarked brand tells you to cease and desist because you’re infringing on their trademark. Then, you’ll find yourself in a position where you have two options and neither of them are good—risk legal action or rebrand. This is a nightmare, true, but there’s good news—you can keep this same scenario from happening to you by completing trademark clearance BEFORE you decide on branding. What is trademark ‘clearance’?Clearance is the process of searching multiple trademark databases, including federal and state databases, to determine if anyone else is using a similar mark on similar goods. Running clearance checks can help you assess and avoid any potential risk factors to your mark’s successful registration. Can anyone conduct trademark clearance?Yup! Anyone can conduct clearance searches, the trick is knowing what you’re looking for, how to properly construct a search query, and figuring out what other databases will also need to be searched. How do I conduct trademark clearance?We recommend starting with the USPTO Trademark Electronic Search System (TESS). This will allow you to easily see if another similar brand has already been trademarked or has an application pending. The downside is that this is just the tip of the iceberg. Even if a trademark is registered and protected, it may not appear in TESS because it was registered with another entity, possibly outside the country or in a different state. With that in mind, you’ll need to determine which additional databases would need to be queried based on your industry, location, and distribution range, just to make a few potential factors to keep in mind. And outside of the official database, you’ll also need to check on any other possibilities of current or past use by others. This seems complicated and super boring...We hear you and you’re not wrong. While searching a database sounds pretty straightforward, this is the government we’re dealing with, so many aspects of trademark clearance and even the registration process can be anything but.
If you’re concerned about potential branding issues, we’re here to help and encourage you to contact us. While no one can guarantee you a trademark approval, not even dedicated trademark lawyers, we can help you avoid common trademark registration pitfalls and determine which additional databases should be queried before you apply.  DISCLAIMER: This post does not constitute legal advice. It merely sums up changes in the alcohol beverage laws to assist businesses in planning for the changes. If you have questions, then please speak to your legal professional. INTRODUCTIONSo, do you remember reading this past spring about the Gallo Winery pushing for law changes to come to South Carolina? Well, that happened. But, there was also another part of that bill that was tucked away. It’s called the South Carolina Micro-distillery Parity Act. Based on the title, you can imagine what the point of the legislation was. Since 2013 and 2014 with the passage of the Pint Law and Stone Law, distilleries have watched breweries become an economic juggernaut as well as being the places to go - sometimes at their expense. They’ve also seen very slow changes to the evolution of their own laws. But, the Parity Act sought to change all of that. SO, WHAT DOES IT DO?In a way, it’s like the Stone Law for South Carolina distillers. And like the Stone Law did, it really creates two kinds of distilleries. Effectively, it comes down to starting a DHEC kitchen space and serving food. If you are able to offer that, then you are eligible to get a beer/wine license from SCDOR, as well as another liquor permit so you can serve other spirits. Which are the same permits that breweries are able to get in addition to their brewery permit. Interesting side note: wineries are now the only producers in South Carolina who aren’t able to sell anything other than their products. Here’s what each type of distillery can now do: DISTILLERIES WHO SERVE FOOD AND OPT FOR ADDITIONAL PERMITS
DISTILLERIES WHO DON’T SERVE FOOD
 Catch all that? So, distilleries who add a food component get the benefit of adding licenses which allow them to expand hours and offerings. But, they still will follow liquor state to-go rules on Sundays.
There are quite a few odds and ends in the bill, but basically, it’s a huge win for distillers. And as we always say to our brewers who take advantage of the Stone Law, its free money if you do it. Having greater flexibility in operating your business and in what you can offer to your consumers is always a win. You can read the new law here. Feel free to reach out if you have questions.  Yesterday, Governor Henry McMaster and SC DHEC announced that the state will advance to Phase 1b of the state’s COVID-19 vaccination plan beginning Monday, March 8th. The approach is based on the state’s recognition that risk increases with age, certain medical conditions, and certain occupations. The state’s goal is to have vaccines for everyone who wants one by this summer. Beginning on Monday, March 8, the following groups will be allowed to begin making appointments:
WHAT IS A FRONTLINE WORKER?The big question is what is a frontline worker and does it apply to employees in the alcohol industry - whether it be someone in the kitchen, tasting room staff, production employees, warehouse employees, or someone in the office. The state has provided the following definition of people it deems to meet this classification:
The state has provided the following examples of people it believes would qualify as a frontline worker:
 DO I, MY EMPLOYEES, OR TEAMMATES QUALIFY?As best we can tell, the state believes that the breakdown would look like this: Production Employees: 1b Tasting Room Employees/Bartenders: 1b Wait staff: 1b Retail Employees: 1b Kitchen Staff: 1b Delivery Drivers/Warehouse Workers: 1c Office Staff (outside of front desk): 1c WHO FALLS UNDER THE NEXT PHASES?The state currently intends for Phase 1c to begin on April 12th. At that time, eligibility will be extended to those aged 45+, essential workers, and those whose work in essential job categories defined by the CDC but were not included in Phase 1b, such as delivery drivers, non-front desk office staff, and warehouse employees. Phase 2 is expected to begin on May 3, 2021 where eligibility will expand to all South Carolinians aged 16+.  HOW CAN AN APPOINTMENT BE MADE?Beginning on Monday, March 8th, online appointments can be made by using scdhec.gov/vaxlocator or you can call DHEC’s COVID-19 Vaccine Information Line at 1-866-365-8110 for help. HOW IS ELIGIBILITY DEMONSTRATED?When seeking vaccine services, people included in Phase 1b or 1c may show eligibility by showing an ID that includes their date of birth, verifying that they meet the criteria for a frontline or essential worker, or by verifying that they have an eligible high-risk medical condition. So, for our clients, we’d recommend providing a form or letterhead verifying employment and job responsibilities and a statement that the employee would qualify.
South Carolinians are urged to get vaccinated according to the state’s plan, and not to jump ahead of others. Please contact our office if you have any questions.  As Hurricane Dorian approaches the Carolina coast, we hope that everyone in the potential impact zone is working to get prepared. Being based in South Carolina, we are very concerned for many of our friends and clients as the storm approaches. While everyone’s list of things to do might vary, we just wanted to offer a few things to add to the checklist, particularly if you own an alcohol related business. So, before you throw that hurricane party, make sure you take care of the things listed below.  PREPAREDNESS TIPS1. WATER. All of our producer clients in range of the storm should consider filling kegs and/or empty fermenters with water in case of a shortage. While the current track might a completely direct hit to the Lowcountry, things can change, and if this storm is as bad as expected, it is likely that electricity could be out for some time and that water service will be unreliable due to flooding. You might not be able to brew for a short time. Retailers and beer enthusiasts should consider filling empty growlers with fresh water. Many breweries and/or retailers might be offering fresh water in kegs and/or growlers, but plan ahead. 2. DOCUMENTS/BACKUP YOUR DATA. Businesses should gather important documents from the business and put them in a safe container and take them with you or at least put them in a secure location. If you can’t take the documents with you, then use plastic bags and duct tape. Put documents in at least gallon-size Ziploc bags. Duct tape all bags closed. Important documents can vary, but these would include licensing paperwork, insurance policies, tax returns, and contracts. Additionally, ensure that data is backed up and that any backup is performed in a timely manner and that any storage is done somewhere that is safe, secure, and dependable. 3. PHOTOGRAPHS. Take photos today or tomorrow of every room at the business (or home), every piece of electronics, and everything valuable, including documents. Upload the pictures to the cloud before the storm. Also make sure that your contacts are uploaded to the cloud. 4. INSURANCE. Review your business (or home) insurance policy to make sure you have coverage for any storm damage to the business. Remember, flood insurance isn’t covered under standard policies. Certainly, if you aren’t insured, then the bad news is that a policy can't be procured in the time needed. However, having knowledge of what your policy says can be beneficial in preparing for what you need to do and how you will need to proceed on a claim after the storm. 5. STORAGE. In terms of storing product, it is best to store it in a place above the ground in the case of flooding. Certainly, this might not be practical for keg storage. However, if you have shelving and can afford to move product or other merchandise off of a low area, then that would be beneficial. 6. PROTECTION. You can’t move your equipment, but you can prepare your building for potential flooding if you are in a flood plain. Local authorities should have information regarding sand bags. You’ll probably already know what your drainage situation is, but look into generators to operate certain pumps. This would be helpful in keeping the lower levels of a facility clear of flood waters. Boarding up of windows and other vulnerable apertures can protect the building from any high-speed debris that is flying during the storm. 7. PLANNING. In terms of making a true hurricane plan, please consult the authorities and experts and what is recommend for the aftermath. But, please start now if you haven’t. There are many great resources out there. Please remember that a hurricane is not the only threat to assess. You also should be concerned about tornadoes, fire, flooding, and looting. Part of this plan would include following meteorologists in your area regarding the latest information and forecasting. We happen to have one in our family who serves the Lowcountry and is currently also serving the Midlands, and so we would highly recommend Chrissy Kohler. 8. GOVERNMENT OFFICES. It is anticipated that SC state government offices in the Lowcountry are going to be closed for at least Tuesday of this week, and possibly more. Government offices may likely also be closed through Friday in coastal counties. If you need anything quickly from DOR, DHEC, or other government offices that you usually work with, it is best to move quickly. 9. COMMUNICATIONS STRATEGY. It should be kept in mind that normal functions could be interrupted by the storm and any flooding occurring after. Establish backup communications and have a plan to restore them. Some options would include cell phones, radio, and walkie-talkies. Identify a communications contact within your business who can communicate any necessary information to employees. 10. EMPLOYEES. If you’re located in a coastal county in South Carolina, then please note that the government has ordered an evacuation. Not everyone will heed this warning, and many will stay in the area - with many businesses staying open before and after the storm. Many employees will heed the warning and leave the impacted areas. Many jobs on the coast revolve around food and beverage, which means those jobs (for the most part) are going to be non-union private sector jobs. That means that employers have enormous flexibility when dealing with employees during a storm. Employees wishing to evacuate can be disciplined by employers for failing to show for work should the business stay open and the employer directs the employee to come to work. Of course, the likelihood of that for evacuating is low, often because it isn’t a good look for employers. But, this is more reason to communicate well with employees before and after the storm. Stay safe, everyone. BROOK BRISTOW Brook Bristow is a South Carolina-based lawyer at Bristow Beverage Law, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, and intellectual property. You may reach him directly at brook@bristowbeveragelaw.com
 As Hurricane Florence approaches the Carolina coast, we hope that everyone in the potential impact zone is working to get prepared. Being based in South Carolina, we are very concerned for many of our friends and clients as the storm approaches. While everyone’s list of things to do might vary, we just wanted to offer a few things to add to the checklist, particularly if you own an alcohol related business. PREPAREDNESS TIPS 1. WATER. All of our producer clients in range of the storm should consider filling kegs and/or empty fermenters with water in case of a shortage. While the current track might miss the lower part of the Lowcountry, things can change, and if this storm is as bad as expected, it is likely that electricity will be out for some time and that water service will be unreliable. You probably won’t be able to brew for a short time. Retailers and beer enthusiasts should consider filling empty growlers with fresh water. Many breweries and/or retailers might be offering fresh water in kegs and/or growlers, but plan ahead. 2. DOCUMENTS. Businesses should gather important documents from the business and put them in a safe container and take them with you or at least put them in a secure location. If you can’t take the documents with you, then use plastic bags and duct tape. Put documents in at least gallon-size Ziploc bags. Duct tape all bags closed. Important documents can vary, but these would include licensing paperwork, insurance policies, tax returns, and contracts. 3. PHOTOGRAPHS. Take photos today or tomorrow of every room at the business (or home), every piece of electronics, and everything valuable, including documents. Upload the pictures to the cloud before the storm. Also make sure that your contacts are uploaded to the cloud. 4. INSURANCE. Review your business (or home) insurance policy to make sure you have coverage for any storm damage to the business. Remember, flood insurance isn’t covered under standard policies. Certainly, if you aren’t insured, then the bad news is that a policy can't be procured in the time needed. However, having knowledge of what your policy says can be beneficial in preparing for what you need to do and how you will need to proceed on a claim after the storm. 5. STORAGE. In terms of storing product, it is best to store it in a place above the ground in the case of flooding. Certainly, this might not be practical for keg storage. However, if you have shelving and can afford to move product or other merchandise off of a low area, then that would be beneficial. 6. PROTECTION. You can’t move your equipment, but you can prepare your building for potential flooding if you are in a flood plain. Local authorities should have information regarding sand bags. You’ll probably already know what your drainage situation is, but look into generators to operate certain pumps. 7. PLANNING. In terms of making a true hurricane plan, please consult the authorities and experts and what is recommend for the aftermath. But, please start now if you haven’t. There are many great resources out there. Please remember that a hurricane is not the only threat to assess. You also should be concerned about tornadoes, fire, flooding, and looting. 8. GOVERNMENT OFFICES. It is anticipated that SC state government offices are going to be closed for at least Tuesday of this week, and possibly more. Government offices may likely also be closed through Friday in coastal counties. If you need anything quickly from DOR, DHEC, or other government offices that you usually work with, it is best to move quickly. 9. LOCAL METEOROLOGISTS. Follow meteorologists in you area regarding the latest information and forecasting. For the Lowcountry specifically, we would highly recommend Chrissy Kohler, Rob Fowler Storm Team 2, Josh Marthers, and Arielle Whooley. Stay safe, everyone. BROOK BRISTOW Brook Bristow is a South Carolina-based lawyer at Bristow Beverage Law, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, and intellectual property. You may reach him directly at brook@bristowbeveragelaw.com
 DISCLAIMER: This post does not constitute legal advice. It merely sums up changes in the alcohol beverage laws to assist businesses in planning for the changes. If you have questions, then please speak to your legal professional. Some of the most common questions I get are about the new nonprofit donation law. If you’ll remember in the last few years, THIS happened. Well, thanks to a coalition of the beer industry (including the SC Brewers Guild and SC Wholesalers Association), the hospitality industry, and others, Senate Bill 114 became law in May of 2017. Although, it didn’t actually go into effect until the end of November. So, what does it mean and how can you as a producer or nonprofit get in on it? That’s what I want to get into today. BACKGROUND Ok, so you’ll recall that before this law, we had a crackdown on donations in 2016 and 2017. Producers could not provide people, equipment, or product. Nonprofits were classified as retailers, the same as would be a liquor store. And so, nonprofits had to purchase alcohol for their events, which created some real problems for many of them. The reasoning for that is because the law didn’t specifically provide for a distinction between nonprofit events and regular special events. Remember, South Carolina is a fairly strict three-tier system state, so producers couldn’t give anything to any retailer without being in violation of that regulatory scheme. Need a three-tier refresher? Very simply, it’s the way that alcohol gets from a producer to a consumer. The three tiers are the producer tier, the wholesale tier, and the retail tier. In practice, here is how it works – a producer makes alcohol and then sells it to a wholesaler. The wholesaler then picks up the alcohol, stores it at their facility, and then sells it and delivers it to a retailer when an order is received. The retailer then sells it to the consumer at the retailer’s place of business. In its purest form, producers can only sell to wholesalers, wholesalers can only sell to retailers, and retailers can only sell to consumers. There are exceptions of course, such as brewery taprooms. The system was adopted after Prohibition and was created to control consumption and to ensure taxes were paid on alcohol. South Carolina has carried the system for quite awhile, but the most recent incarnations of the laws that are on the books come from the 1990s. As a part of the law, producers were not allowed to provide any kind of alcohol or service to retailers, as it provided an incentive for the retailers to sell the producer’s products while potentially excluding others. This is what DOR was relying on when it made the determination that donations were no longer proper - that alcohol was being provided to free to the nonprofit (as a retailer). Again, if you want a complete reset and refresh on the background, then go check out the old blog which has a real deep dive into what went on.  WHAT IS THE NEW LAW? Happy days are here again if you’re a nonprofit. A lot of money and funding for nonprofits come from various special events that are held throughout that year. And having to use operating funds on alcohol really hurt a lot of them. Now, the new law doesn’t do much for those that like to have monthly happy hours or regular events like that. But, it does give relief to those with bigger events that are held annually or quarterly. Let’s breakdown exactly what the new law does:
WHAT ELSE? With many laws that get passed, there are often winners and losers. For the most part, this law is a win for many. Producers win in that they now get to legally help out their favorite charities and causes, and those charities and causes win by not having to shell out a lot of their budget on alcohol for fundraising efforts. So, are there other winners and/or losers, or other quirks that need to be paid attention to?
HOW DOES IT WORK? It's pretty simple. 1. A South Carolina nonprofit organization applies for and is granted a nonprofit special event permit. 2. The nonprofit then (or prior to getting the license) informs the producers and/or wholesalers that it wishes to solicit for the special event. Now, keep in mind that either producers or wholesalers can donate alcohol. So, the nonprofit could approach either. 3. The nonprofit presents the nonprofit special event permit to the producer and/or wholesaler. 4. Whether it is wholesaler or producer donated, the wholesaler will transfer the donation to the nonprofit organization at the location that is licensed for the event, or the nonprofit can pickup the donation from the wholesaler up to 3 days before the event. 5. The wholesaler reports the donation and pays the excise tax on the product. (Typically, a producer will reimburse the wholesaler for the tax if the producer is going to donate.) 6. The wholesaler will give the nonprofit organization an invoice for the product. The nonprofit needs to keep this invoice at the event and have it for review just in case it is requested. The invoice will be for zero dollars and then the wholesaler would then invoice the donating producer for the excise tax that it paid or in the case where the wholesaler had already purchased the alcohol from the producer, it would invoice the producer for that amount and the tax. If a wholesaler just donated on its own, then it would just pay the excise tax. 7. The nonprofit holds the special event with the donated alcohol. All in all, it's a good law that will benefit a lot of great causes. If anyone has any questions, feel free to reach out. BROOK BRISTOW Brook Bristow is a South Carolina-based lawyer at Bristow Beverage Law, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, and intellectual property. You may reach him directly at brook@bristowbeveragelaw.com
 DISCLAIMER: This post does not constitute tax advice. It merely sums up changes in the alcohol beverage excise tax laws to assist businesses in planning for the changes. Excise tax for each company must be calculated upon numerous issues. If you have questions, please speak to your tax professional. And if you have any operational questions about how this affects your business, please contact BBL. Happy New Year! One of my goals for 2018 is to blog regularly instead of just a few times a year. Hopefully, you’ll find some of the information useful. Today, I’ll talk about the new federal excise tax cut for alcohol producers. Next time, I’ll address the new nonprofit donations law in South Carolina. So, let’s get going! You’ve probably seen something about this on the news wires lately. It’s hard to escape anything related to politics these days, and no matter where you fall on the political spectrum, the new tax law certainly sparked some conversation. So, what does it have to do with alcohol producers? Well, first let’s talk about the federal excise tax and what it is. What’s the federal excise tax? Excise taxes are narrowly based taxes on consumption, which are levied on specific kinds of goods, activities, and services. They are usually assessed on either units (think barrels of beer) or price percentage (think airline tickets). For alcohol, excise taxes are collected from either producers or wholesalers, and are usually passed on to the consumer in the price of the goods. Is that clear as mud? Ok, here is a Wikipedia article if you want to dig in a little more: https://en.wikipedia.org/wiki/Excise_tax_in_the_United_States Ok, how about this? Let’s talk only about producers since they are the ones affected mainly by the new law. So, when a producer - brewer, vintner, or distiller - manufactures alcohol, the federal government requires them to keep certain paperwork about the manufacture - It varies depending on what kind of alcohol you’re producing and how strong it is. But, when it comes down to it, the federal government wants to see how much alcohol you’re producing and selling, and then have you pay tax on it. So, if I make 30 barrels of beer and sell them all out of my taproom, then I’m required to report that in an operations filing, and then pay the federal excise tax on those 30 barrels. That report goes to a part of the government called the TTB - which stands for the Alcohol and Tobacco Tax and Trade Bureau. This is the part of the federal government that oversees the alcohol industry and regulates it. The tax goes where all taxes go - to Uncle Sam. What is the new law? The new tax law (the Tax Cuts and Jobs Act of 2017) that was signed on December 22, 2017, incorporated a bill called the Craft Beverage Modernization & Tax Reform Act. If you follow me on social media, this is the bill that I go to Washington, D.C. every year to advocate for - as to many in the beverage industry. This legislation has been championed by the Brewers Association and many other trade associations (including those for wine and spirits) for quite a few years. In fact, in some form, BA has been pushing for this law change for about 10 years. Anyhow, the new law took effect on New Year’s Day. Because of the way the legislation had to be setup, the changes are only good for 2 years - meaning that they will sunset at the end of 2019. So, the law that was just on the books as of a few days ago will return again in 2020 unless it becomes permanent. And there is that chance, but who knows? Yes, but what does the new law do?! Ok. Here’s what it does. The law dramatically lowers the tax rate on alcohol. So, your favorite kinds of alcohol get taxed in different ways.  To get specific: Beer: Beer gets taxed at a standard rate on the number of barrels produced by a brewery. And just so we’re clear, a barrel is about 31 gallons beer. The federal excise tax on beer is reduced to $3.50/barrel (from $7/barrel) on the first 60,000 barrels for domestic brewers producing less than 2 million barrels annually. For those over that amount, the tax is reduced from $18/barrel to $16/barrel on the first 6 million barrels. To be clear, every brewery in South Carolina falls into the first category and will have their taxes cut in half. Spirits: Spirits get taxed at a standard rate per “proof gallon” produced. What’s a proof gallon? That’s a spirit that is 50% ABV. Rates get adjusted if you’re over or under that number. So, if you’re less than 50% ABV, then you get taxed less, and if you’re over 50% ABV, then you get taxed more. So, the tax rate for distilled spirits is reduced from $13.50 a proof gallon to $2.70 on the first 100,000 gallons removed during each calendar year, and to $13.34 on additional gallons up to 22,130,000. For perspective, let’s say a distiller only does 750s. Typically, a case of that would have 12 bottles, and that would equal about 2.3 gallons per case. So, most likely, all South Carolina distilleries would fall into the first category. Wine: Wineries get taxed at a standard rate per gallon of wine, but it’s done based on a scale of rates which vary depending on ABV and the type of wine produced. And of course, for vintners, the reductions vary depending on the number of gallons produced and the ABV. It’s actually the first reduction in excise taxes on wine in 80 years. All vintners will get a tax credit between $0.53 and $1.00 per gallon on the first 750,000 gallons. For the first time, sparkling wine is eligible to get that tax credit. Cider producers will also be able to get a proportionate tax credit. Other changes will include changing the way wines with 14% to 16% ABV are currently taxed - to $1.07 per gallon. Wines between 16% and 21% ABV are taxed at $3.57 per gallon. Ok, enough math. The best thing to say right now is that with the change, any alcohol producer should be assessing their operations to get the most out of this current temporary tax cut over the next two years. There is no guarantee that this will become permanent, nor that alcohol will be cheaper. BROOK BRISTOW  Brook Bristow is a South Carolina-based lawyer at Bristow Beverage Law, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, and intellectual property. You may reach him directly at brook@bristowbeveragelaw.com
 As Hurricane Irma approaches the Southeastern United States, we hope that everyone in the potential impact zone is working to get prepared. Being based in South Carolina, we are very concerned for many of our friends and clients as the storm approaches. While everyone’s list of things to do might vary, we just wanted to offer a few things to add to the checklist, particularly if you own an alcohol related business. PREPAREDNESS TIPS 1. All of our producer clients in range of the storm should consider filling kegs and/or empty fermenters with water in case of a shortage. If this storm is as bad as expected, it is likely that electricity will be out for some time and that water service will be unreliable. You probably won’t be able to brew for a short time. Retailers and beer enthusiasts should consider filling empty growlers with fresh water. Many breweries and/or retailers might be offering fresh water in kegs and/or growlers, but plan ahead. 2. Businesses should gather important documents from the business and put them in a safe container and taking them with you or at least put them in a secure location. If you can’t take the documents with you, then use plastic bags and duct tape. Put documents in at least gallon-size Ziploc bags. Duct tape all bags closed. Important documents can vary, but these would include licensing paperwork, insurance policies, tax returns, and contracts. 3. Take photos today or tomorrow of every room at the business (or home), every piece of electronics, and everything valuable, including documents. Upload the pictures to the cloud before the storm. Also make sure that your contacts are uploaded to the cloud. 4. Review your business (or home) insurance policy to make sure you have coverage for any storm damage to the business. Remember, flood insurance isn’t covered under standard policies. Certainly, if you aren’t insured, then the bad news is that a policy can't be procured in the time needed. However, having knowledge of what your policy says can be beneficial in preparing for what you need to do and how you will need to proceed on a claim after the storm. 5. In terms of storing product, it is best to store it in a place above the ground in the case of flooding. Certainly, this might not be practical for keg storage. However, if you have shelving and can afford to move product or other merchandise off of a low area, then that would be beneficial. 6. You can’t move your equipment, but you can prepare your building for potential flooding if you are in a flood plain. Local authorities should have information regarding sand bags. You’ll probably already know what your drainage situation is, but look into generators to operate certain pumps. 7. In terms of making a true hurricane plan, please consult the authorities and experts and what is recommend for the aftermath. But, please start now if you haven’t. There are many great resources out there. 8. It is anticipated that state government offices are going to be closed for at least Monday and Tuesday of next week. Government offices may likely also be closed on Friday in coastal counties. If you need anything quickly from DOR, DHEC, or other government offices that you usually work with, it is best to move quickly. 9. Follow meteorologists in you area regarding the latest information and forecasting. For the lowcountry specifically, we would highly recommend Chrissy Kohler, Rob Fowler Storm Team 2, Josh Marthers, The Weather Channel, and Bryan Norcross. Stay safe, everyone. BROOK BRISTOW Brook Bristow is a South Carolina-based lawyer at Bristow Beverage Law, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, and intellectual property. You may reach him directly at brook@bristowbeveragelaw.com
|
AuthorBrook Bristow is a South Carolina-based lawyer at Bristow Beverage Law, who primarily counsels companies in the alcohol industry on business and employment laws, as well as on compliance, licensing, & intellectual property. You may reach him directly at: brook@bristowbeveragelaw.com Archives
March 2022
Categories |
RSS Feed
ATTORNEYS AT LAGER
COPYRIGHT © 2022 BRISTOW BEVERAGE LAW, LLC, ALL RIGHTS RESERVED.
CHECK OUT OUR TERMS OF SERVICE
CHECK OUT OUR TERMS OF SERVICE