YIKES! $2,600,000 Fine Against a Beer Wholesaler

By: Dan Minutillo, Esq., Minutillo Law

In March 2019, the Massachusetts Supreme Judicial Court (the Court) affirmed a $2.6 million dollar fine against Craft Brewers Guild (CBG), a wholesaler. The reason, alleged violation of anti-price discrimination statutes and other commercial bribery regulations.

Allegations

  CBG allegedly paid companies money as a rebate in exchange for an agreement to sell CBG product at bars and restaurants. To hide the payments, these companies allegedly billed CBG for services like marketing support and promotional services that never happened.

  The Court held that CBG violated commercial bribery regulations  and participated in a commercial bribery scheme to encourage retailers to supply CBG distributed products. The Court held that this type of commercial bribery falls with the purpose of the Massachusetts Liquor Control Act. CBG’s conduct was allegedly illegal because the regulations prohibit companies like CBG from providing money to induce the purchase of certain alcoholic beverages. When money is given to a company to persuade that company to purchase a product, at that point there is a possible violation of these regulations.

  In the present case CBG allegedly did not offer these rebates to all retailers, and rebate amounts differed among the retailers involved so it is held responsible for violating the anti-price discrimination statutes and allegedluy also the commercial bribery regulations.

  A bribe to induce a company to do something in violation of law or anti-discrimination policies is illegal no matter what form the bribe takes or how the paper trail is structured. Rebates, refunds and other incentives to illegally induce a company to sell its products could be construed as a bribe if there is no logical and legal basis for the transfer of money. A bribe is a bribe no matter what form it appears.

US antitrust laws regulate the relationship of companies involved in a supply chain at different levels. There cannot be an arrangement by these companies to reduce competition. Courts will lift the veil behind the name of written documentation (how an agreement is titled), or even behind the words used in documents to determine whether an agreement to pay money is actually a bribe.

  The courts look to substance (the real relationship between the parties and of their conduct) over form (the words in a document). This principle holds true in many transactions when documents are drafted to embody the terms of the transaction. During litigation, substance and conduct will usually trump form (a cleaverly written document disguising a bribe or anti-competitive conduct as something else).

  Massachusetts’ commercial bribery regulations are valid, banning discounts, rebates and other inducements to buy alcohol from only one particular vendor. These regulations help to prevent price discrimination and an even, fair, competitive playing field for all craft-brewing companies trying to sell product based on quality and market price as opposed to “buying” their way to higher sales using illegal practices.

  15 U.S. Code § 13 (15 USC 13), deals with pricing and selection of customers in the supply of products. In accordance with this Code section, It is unlawful for any person engaged in sales or distribution of products either directly or indirectly, to discriminate in price between different purchasers of commodities of the same type of grade and quality of that product if the  products  are sold for use, consumption, or resale within the US if the effect of such discrimination may be substantially to lessen competition.

This Code Section Also Indicates:

   “PAYMENT OR ACCEPTANCE OF COMMISSION, BROKERAGE, OR OTHER COMPENSATION  It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.”

  This rule does not apply if there are differences in the cost of manufacture, sale, or delivery relating to one purchaser and not to another. Also the rule does not prohibit price changes from time to time where a price change is in response to changing market conditions of the goods concerned, such as actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales due to the discontinuance of sales of the goods concerned. The US Federal Trade Commission has the power to stop any kind of unfair business practices including but not limited to exclusionary exclusive dealing contracts.

  Anti-bribery regulations are made, published and implemented all over the world. They are becoming more obvious in China, Ireland, and Saudi Arabia. Enforcement in other countries is somewhat irregular. Enforcement in the US is aggressive when the facts warrent investigatioin and punishment.

  The Massachuetts Supreme Judicial Court case discussed in this article will be followed closely by other jurisdictions in the US. This type of kick-back may be viewed as a form of bribery in other jurisdictions with large fines to follow. Be aware.

For more information contact…Dan Minutillo or www.minutillolaw.com

Lots, Codes, and Life: Dating in the Beer Industry

By: Eric Myers

As the number of active breweries in the country exceeds 7000 and roars toward 8000, it’s more important than ever to consider one of the crucial facets of your packaged product: shelf life, and how to communicate it to your customer. It’s not just marketing; date lot coding and traceability is required by the U.S. Food and Drug Administration under the Bioterrorism Act of 2002. However, the exact method of recording date lot codes is ultimately up to each individual brewer, and there is a vast array of practices in the industry that can ensure that your customer knows how fresh your beer is, and that you’re in compliance with federal code at the same time.

Why Is Date Coding Important?

The easiest answer to this question is because you must. It’s the law. In the unfortunate situation that your brewery – or one of your suppliers – might have to recall product from the market, having date lot coding that is on every package, is easy to find, and easy to understand will allow your staff and every downstream partner, whether it’s a distributor or a retailer, to comply with the recall efficiently and ultimately save you headaches and money.  It’s also a great tool that your sales force–or your distributor–can use to be sure that beer in the market is as fresh as possible, it can help with FIFO inventory control and create an accountability tool for you to use with all of your downstream partners.

Finally, it’s an extra layer of transparency for your customer, as well as an educational tool, allowing you to provide them with the best–and freshest–possible product, and the best possible customer experience.

How to Code

For better or worse, there is no standard way or best practice guide to follow for date coding your beer. From a practical, legal standpoint, as long as there is a code on your package that is traceable to a batch at your particular factory and you can track that batch back to its component ingredients, you’ve complied with FDA standards. However, esoteric or confusing coding can be a problem in the marketplace and lacks customer transparency.

Many food and beverage manufacturers use a Julian Code to signify what date an item was manufactured or packaged. Julian Code is a system designed by the U.S. Military to easily date MREs and is easy to track and assign with simple programming tasks. It uses the last digit of the year in question followed by the day of the year.  (For example, a product dated with December 15, 2018 the Julian Code would be 8349.  December 15 is the 349th day of the year in non-leap-years.)  While this provides a standard format that is unique per day and easily traceable on a package and within a database, it is not easy for a customer to read and gain information from. An eager beer drinker looking for a fresh IPA would have no way of knowing what information was being presented to them and might end up looking elsewhere.

However, a standard date might not be the easy go-to answer that it seems. A report by the Natural Resources Defense Council (NRDC) and Harvard University’s Food and Law Policy Clinic (The Dating Game, 2013, NRDC) notes that confusing date labeling leads to a tremendous amount of food waste in the United States as “open dates can come in a dizzying variety of forms, none of which are strictly defined or regulated on a federal level” and that “although most date labels are intended as indicators of freshness and quality, many consumers mistakenly believe they are indicators of safety.” Putting information on your package that isn’t well thought out may create more harm than good.

Finding the Right Date

Back in 1996, Anheuser-Busch launched a marketing campaign in a bid to show that their beer was the freshest on the market and coined the term, “Born on date.” It has become a ubiquitous term in the beer industry, regardless of the fact that the date was dropped from all Budweiser labeling in 2015 in favor of a “Freshest before” date. Just because the biggest brewery in the land does it hardly makes it an industry standard, however. It’s not even standard across their entire company.

Megan Lagesse of Anheuser-Busch InBev’s “The Higher End” craft division notes, “Some of [our] partners (Goose Island, [and] Wicked Weed) are doing dual date coding (brewed on and best by) but everyone isn’t because not all of our production equipment has the capability to dual date code,” she says. “So, we chose best by date coding [for] broader consistency, because everyone understands an expiration date but not everyone is educated enough to know IPAs should be drank as fresh as possible, but you can age wild beers and stouts.”

Jeremy Danner, Ambassador Brewer of Kansas City’s Boulevard Brewing, notes proudly that Boulevard prints, “both packaged on and best by dates on all cans, bottles, keg rings and exterior boxes. If you’re going to only print one,” he says, “it should be the packaged-on date, as thoughts vary when it comes to shelf life.”

That shelf life–the basis of rationale behind a best by date–can be difficult, if not impossible, for a small brewery to determine. While larger breweries have the benefit of tasting panels, labs, and a vast number of data points, many small breweries get by with a microscope and a handful of jack-of-all-trade production team members. In small breweries, with limited, sometimes unique, production batches, shelf life is often the product of an educated guess, rather than a robust statistically significant tasting panel. Even pressure from a distributor can affect what date goes onto a package and in many cases a brewer will resort to relying on a packaged-on date and using phrases like, “Do not age” or “Best when its fresh” in lieu of a best by date.

Doing so, however, relies on the customer to be educated about your product, and that might not always be as easy as it sounds. Pete Ternes of Chicago’s Middle Brow beer notes, “90% of consumers don’t know what it means for a particular beer to have been packaged on a particular date.” While there are many craft beer fans who are incredibly well-educated and can ascertain which beer styles can handle age and which can’t, most beer-drinkers don’t know the implications of a beer’s brewed or packaged-on date.

Complicating the issue is lack of consistent temperature control once product leaves the brewery. A brewery may post a shelf life of 45 days for an IPA, but not the conditions under which that shelf life has been ascertained or should be maintained. A beer with a shelf life of 45 days at 38F has a shelf life of only 11 days at room temperature.

No Easy Answers

Unfortunately, until an industry standard or federal regulation is put into place, there is no easy answer about how to best approach lot and date coding. Ultimately, it is up to you to choose the method that you think will both comply with the FDA and provide information to your customers. Regardless of what format you do choose, providing context and information to your customers–whether that customer is the distributor, the retailer, or the end consumer–as to how you arrived at the decision of what lot and date coding method you’ve chosen is the best path and can double as an excellent marketing and education tool for your brewery.

Crafting Marijuana Policies? Managing Employees in the Wake of Legalized Marijuana

By: Amy Lessa and Nicole Stenoish, Attorneys At Law, Fisher Phillips

Marijuana legalization is on the rise and quickly expanding to all corners of the United States. Nearly 2/3 of the states have legalized marijuana for either recreational or medicinal use.  Currently, 11 states and the District of Columbia allow recreational marijuana, and an additional 22 states allow medical marijuana. These numbers are expected to grow over the next few years as the societal and political perspectives on cannabis continue to shift in favor of legalization.

Despite this shift, marijuana still remains an illegal Schedule I drug under the federal Controlled Substances Act – in direct contrast with legalized marijuana at the state level.  Although federal law is superior to state law, businesses must comply with both – even if federal and state laws conflict with one another. The chronic dispute between state and federal marijuana laws has left many employers confused about how to handle marijuana use in the workplace.  We’re here to clear the smoke.

Legalized Marijuana – What Can-a-Business Do?

Marijuana laws are constantly evolving and continue to be challenged in courts across the country. This makes it difficult to keep up with the requirements and limitations of legalized marijuana under both state and federal law.

Many employers are now questioning whether their workplace marijuana policies and practices should be revised.  Before deciding what policy is best for your company, it is important to understand the law in your state.  A company’s policies should also reflect the specific needs and challenges of the business and workforce.  For example, many craft brewery owners report they can no longer test for cannabis because most of their applicants cannot pass the drug test at the pre-employment stage. That could leave a brewery without a workforce.  As a result, Company’s should decide whether it makes sense to continue testing for cannabis in their pre-employment drug screens.  Other issues relevant to this determination are whether your employees operate heavy machinery or work in safety sensitive positions, and are you having difficulty recruiting qualified candidates for your company?

There are several key issues the keep in mind when determining the best marijuana policies and practices for your workforce:

  1. Maintain a Drug-Free Workplace

Employers are entitled to maintain specific policies related to marijuana use in the workplace, including drug-free workplace and zero-tolerance policies.  Because marijuana remains illegal under federal law, employers can strictly prohibit marijuana at work.  Employees can be disciplined, and even terminated, for coming to work under the influence, possessing marijuana on company premises, or using marijuana while at work – even in states where marijuana is legal.  In most states, companies also have the right to test employees for drug use, and can discipline or terminate employees for violation of the drug-free workplace policy. Before implementing a zero-tolerance policy, make sure your state does not specifically protect medical marijuana users or prevent employers from disciplining workers for legal off-duty conduct. Otherwise, drug-free workplace policies are essential to help protect your business and manage employees in the wake of legalized marijuana.

  1. Review Drug Testing Policies

Employers can typically require employee drug testing throughout employment. The different types of testing including pre-employment drug testing, random drug testing, reasonable suspicion drug testing, and post-accident drug testing depending on state laws.  Employers with mandatory drug testing policies need to ensure they follow specific state laws restricting disciplinary action based on positive test results.  Additionally, employers are prohibited from administering drug tests as a form of discipline or for retaliatory purposes. There are several other issues to consider when reviewing your company’s drug testing policies.

First, the science used to test for marijuana has been slow to catch up with increased legalization. While there are testing methodologies currently in development, there is no test to determine whether an individual is presently under the influence of marijuana. Marijuana can remain in one’s system for weeks, and an employee could test positive for marijuana even if it was consumed outside of work and had no impact on the employee’s job performance. This creates potential issues for employers when drug testing employees who have medical marijuana prescriptions, or in states where recreational marijuana is allowed.

Also, many states have laws that provide protections for engaging in legal off-duty conduct.  These laws prohibit employers from considering an employee’s lawful conduct outside of work for purposes of making employment decisions.  For example, in states where recreational marijuana is legal, the consumption of marijuana outside of work hours could be considered lawful off-duty conduct, and an employer could be prohibited from using an employee’s positive drug test for purposes of making an adverse employment decision. Although this issue remains largely untested by the courts, and employers are currently allowed to make certain employment decisions based on drug test results, we anticipate that employee drug test results will be challenged by lawful off-duty conduct laws in the years to come.

Furthermore, employers in a limited number of states may need to accommodate medical marijuana usage by employees. In those circumstances, employers are prohibited from making employment decisions based on an employee’s positive test result, depending on the nature of the employee’s particular position and job duties.

Pre-employment Drug Testing

Companies are generally allowed to require drug testing as a condition of employment, and can deny employment based on positive test results.  However, some states limit pre-employment drug testing for medical marijuana users, and other states have anti-discrimination laws for pre-employment drug test results.

Interestingly, an increasing number of companies, including those in the craft beverage industries, are eliminating pre-employment drug testing because of difficulties it can pose in finding employees who can pass the test.  As a result, some employers are softening their drug testing policies or removing marijuana from the list of drugs tested for. However, softening the stance on pre-employment marijuana drug testing may not be a viable option for companies with employees working in safety-sensitive positions, or companies with insurance policies or government contracts that specifically require employee drug testing.

Drug Testing During Employment

Employers may also consider random drug testing, reasonable suspicion drug testing, and post-accident drug testing of employees. Random drug testing is only allowed in some states and often limited to employees in specific, narrowly defined classifications – such as employees working in safety sensitive positions.  Almost all states allow employers to drug test employees if there is reasonable suspicion that an employee is impaired on the job.  Reasonable suspicion must be more than a hunch, and employers should be able to articulate the employee’s specific conduct or behaviors that led the employer to suspect impairment on the job.  Employers can also conduct post-accident drug testing following a workplace injury or accident, but only for employees whose impairment or drug use could have contributed to the incident.

Overall, companies should review state-specific laws and consider the specific needs and challenges of their workforce when reviewing or revising drug testing policies and practices.  And you should always put drug testing policies in writing, distribute to your employees, and enforce the policies uniformly.

  1. Accommodation of Medical Marijuana Varies by State

Generally, employers do not need to accommodate medical marijuana in the workplace. However, this could soon change. Courts in several states have recently indicated that accommodating an employee’s medical marijuana use may be appropriate in certain situations.  Employers already must engage their employees in the interactive process to explore reasonable accommodations for known disabilities of an employee. In some circumstances, this could mean accommodating medical marijuana use if it is determined to be a reasonable accommodation that does not create an undue hardship on the Company. Before doing so, however, employers should consult with qualified legal counsel.

Employers also need to be careful when disciplining medical marijuana users. Several states have specific laws protecting medical cannabis patients from employment discrimination. Medical marijuana patients in Massachusetts, Rhode Island, Connecticut and Pennsylvania, for example, have already won lawsuits against companies that rescinded job offers or fired workers because of positive tests for cannabis. Medical marijuana laws are continuing to evolve, and protections for medical marijuana users are likely to increase.

Conclusion – Best Practices

An increasing number of states have legalized medical or recreational marijuana, yet the federal government continues to classify marijuana as an illegal drug. This conflict between state and federal law is not likely to be resolved anytime soon. In the meantime, employers should follow several best practices to manage employees where marijuana has been legalized.

Companies should carefully review these issues and create policies that balance legal compliance with the specific needs of the business. Until the conflict between state and federal law is resolved, this includes:

  • Stay up to date with evolving marijuana laws.
  • Determine specific requirements for drug testing and medical marijuana in each state in which your company has employees.
  • Develop state-compliant workplace drug policies that are appropriate for your business.
  • Confirm your drug testing policies in writing, distribute to employees, and apply the policies uniformly.
  • Consider eliminating strict drug testing practices in favor of reasonable suspicion drug testing.
  • Determine if you will test applicants for marijuana use or not.
  • Contact legal counsel if any specific concerns or incidents arise within your workforce.

If your company follows these simple guidelines for managing employees in the wake of legalized marijuana, you will be in a good position to adapt while protecting your business as marijuana legalization continues to evolve in the coming years.

For questions on specific state laws, consult with an attorney.

  Amy Lessa and Nicole Stenoish are attorneys in the San Diego office of Fisher Phillips.  Amy and Nicole counsel and defend employers, including breweries in employment law matters. They can be reached at alessa@fisherphillips.com and nstenoish@fisherphillips.com

Petition for a Writ Far-fetched? Nope!

By: Dan Minutillo, APC

If a state regulatory agency with jurisdiction over the craft brew industry makes a decision that appears to be arbitrary and capricious, having a direct effect on your business, then, you have the right to petition a court for relief using a Writ of Administrative Mandamus. An unnecessarily fancy phrase meaning that a court of law reviews the administrative decision and decides if, under applicable law, the decision is not rational. Most times a writ is requested by an association or group of companies that are affected by the agency decision so that a positive result will affect many companies in the association or group.

STATE ADMINISTRATIVE AGENCIES

State administrative agencies with jurisdiction over the craft brew industry create policies that can affect your business. I recently wrote in this magazine about a Tennessee agency which passed a regulation indicating that only people domiciled in Tennessee for a certain time could get a permit to sell alcoholic beverages in the State.

For the purpose of this article, let’s say that an administrative agency in California, like the California Department of Alcohol Beverage Control (ABC), passed a regulation indicating domicile restrictions to get a permit to sell craft beer om the State; that a company had to be in business in the State for ten (10) years and then that company could sell alcoholic beverages. This regulation is then challenged by you as arbitrary and capricious at the agency level, and the agency denies your challenge.  You argue that this domicile restriction is illogical, with no purpose other than to discriminate against out of state craft brew companies. You lose at the agency level, that is, the ABC reviews your challenge and denies it.

THE APPEAL; THE WRIT

That administrative decision (the denial of your challenge) by the ABC can be appealed to a court by “writ”, and you, the appellant, will win and ensure that this decision and underlying regulation is stricken if you can prove that the decision and underlying regulation is arbitrary, that is, without a rational basis.

So, there are a few criteria to get you into court to have the ABC decision (the denial of your challenge) reviewed and to win on your writ:

  1. That the decision/regulation was made by an “administrative agency” of a state (or of the Federal government), like the California ABC;
  2. Normally, that you have exhausted your administrative remedies. This means that if there is a method of appeal at the ABC, then you must first make that appeal and follow all other procedural rules regarding an appeal at the ABC before you bring a writ.
  3. That all of your ABC remedies have been exhausted and denied, and this denial must usually be in writing by the ABC (evidentiary issue).
  4. That you have standing to be heard by a court. Standing means that you are a “party in interest” which usually means that you, that is, your business has been affected by this ABC regulation/decision. You have standing if you will be or have been damaged by the regulation or decision. For example, if I teach math to high school students in a local school, I would not have standing to bring a writ in this circumstance because the ABC regulation/decision does not affect me. But, if you make or sell craft beverages, this regulation/decision does affect you, so, you have standing to bring the writ.
  5. That any applicable statute of limitation has not run. Most actions brought in a court of law must be brought to the court before a certain time period, that is the statute of limitations. Various statutes limit the time in which you can bring certain actions. Some statutes are as short as ninety (90) days from the time of the ABC denial of your challenge.
  6. That you can prove that the decision/regulation was made by the California ABC in an arbitrary and capricious manner, that is, there is no basis in fact or law to support the decision (the denial). It was whimsical and therefore an abuse of discretion by the ABC. The case law language is that a court on a writ will not disturb the ABC’s decision absent an arbitrary, capricious, or patently abusive exercise of discretion by the ABC.

THE STANDARD

Some courts call this a “rationality review”. Is the regulation/decision rational, that is, justified in fact and in law. No matter how you look at this, the key here is that the ABC did something that has damaged you and, after exhausting your administrative remedies, you are able to prove that the ABC’s decision is arbitrary and capricious—and you win.

THE REMEDY

I will discuss remedies, that is, what decision a court could make on a writ and how it could affect you, in a later article for this magazine.

Dan Minutillo has lectured to the World Trade Association, has taught law for UCLA, Santa Clara University Law School and their MBA program, and has lectured to the NPMA at Stanford University. Dan has lectured to various National and regional attorney associations about Government contract and international law matters. Dan has provided input to the US Government regarding the structure of regulations. He has been interviewed by reporters for the Washington Post and other newspapers.