TABC vs. Cuvee Coffee

by Mike McKim

On the eve of Austin Beer Week, I thought now would be a great time to address all the questions I’ve received regarding our case with the TABC and share what I’ve learned. If you need a refresher course on what has lead up to this point, read this and this. But for simplicity’s sake, you can just know that I am fighting for retailers’ (those holding a BG permit like Cuvee Coffee Bar) right to sell beer to-go in a Crowler.

First things first: What is a Crowler? A Crowler is a 32 ounce aluminum can that retailers fill from the tap. If you think that sounds just like a Growler, you’d be right. Think Can + Growler. Crowler. (Which sounds a hell of a lot better than an aluminum Growler, right?) In fact, the question at the core of this entire ordeal revolves around this similarity. At the heart of everything we’ve gone through this last year with the TABC is the question, "is a Crowler any different than a Growler?”

But before we begin to compare the two vessels, a brief history on the origins of Growlers is helpful.

The Story of the Growler

There are a few versions of Growler history, but the most widely held belief begins in 1800’s when patrons would carry their beer from the pub to their homes in a pail with a lid. Stories have it that as the beer sloshed around in the pail, CO2 would escape from under the lid and the gurgling noise it made sounded like the pail was growling. Essentially, Growlers were containers with lids that patrons used to carry their beer home, and as the centuries passed, the Growler survived as the primary choice for people buying beer to-go. That was the case, however, until Oskar Blues introduced the Crowler in 2014.

I like this story because of its logical nature and genuineness. But for the sake of legal arguments, I needed to know more about how a Growler is defined by the TABC. And knowing what I know now, it seems fitting that we have to look back to folklore of the 1800’s to understand what a Growler truly is. I say this because as we were preparing for our case, we discovered that according to the Texas Alcohol Code, a legal definition of a Growler does not exist. Literally. Here’s what I mean:

  • There is no legally defined size. While the 64oz Growler is probably viewed as the most common size, there is also the Howler (32oz half Growler). And for the heroes out there, you can also legally fill a 1 gallon jug (128oz). But why stop there?! 256oz anyone?
  • There is no legal restriction on material. Legally, a Growler can be any material: glass, ceramic, stainless steel, aluminum, titanium, plastic, etc.
  • There is no legal requirement for a lid. While screw tops and swing tops are most commonly used for Grolwers, we discovered that a retailer is not actually required by law to put a lid on beer to-go.

That last bullet point really makes me scratch my head. If you’ve followed this case and are familiar with all the nuances, you know that our Crowler machine was initially seized under the premise that Crowlers are "permanently sealed” which is not accurate since the manufacturer deliberately scores the lid and applies a pull tab so that it can be opened with one finger.

Also, it’s worth noting that if you go look at the FAQ section on the TABC website right now there does exist a Growler Rule. You can thank yours truly for that. This rule was, in all seriousness, added after my case began. And what’s even more ridiculous than that is the fact this "Growler Rule” did not go through the legally appropriate measures to become an official rule. You can’t make this stuff up.

And to further the lunacy, there is one and only one container according to the TABC that retailers (again talking about BG permit holders) cannot use: a can. It’s in the transcript: a retailer can legally put beer in a tennis ball container but not a can. You read that right. TABC says that I can legally fill a tennis ball container with beer and sell it for off premise consumption, but I cannot sell Crowlers.

Is a Crowler any different than a Growler?

Back to our fundamental question: if Growler size doesn’t matter, and Growler material doesn’t matter, and Growler lids do not matter, then how different, really, are Crowlers and Growlers?

The answer to that question is really murky, actually. As it turns out, each TABC agent is entitled to their own interpretation of this non-specific code. For example, in my case, an agent determined that a Crowler was not similar to a Growler, so the TABC cited me with illegally manufacturing an illicit product. And once that precedent was established, other citations were issued including illegal labeling. However, as Jeffrey Stuffings, founder of Jester King Brewery, Keenan Zarling, head brewer at 11 Below Brewing and Forrest Clark, co-founder of Zilker Brewing testified, canning is not part of the brewing process. And if you read the code closely, it is obvious (painfully so) that "brewing” and "manufacturing” are terms used to describe the act of making beer, while "canning/bottling/kegging” are terms used to describe an entirely different process.

Regardless, we were cited for illegally "manufacturing” because we were filling cans with beer (from the tap) and applying a crimp-on lid. And just so we’re all on the same page, here’s how the Texas Alcohol Code defines "manufacturer": a person engaged in the manufacturing or brewing of beer, whether located inside or outside the state. TEX. ALCO. BEV. CODE § 1.04(17).

So in my specific case, Crowlers and Growlers were interpreted to be very different despite the overwhelming lack of legal clarification, and as a result of this interpretation, the TABC took another step towards legal ambiguity and cited me for illegally "manufacturing” beer. The TABC’s justification for this "Crowlers are different than Growlers” determination hinges on the premise that crimping a lid onto a to-go vessel constitutes manufacturing. But if you recall, there is literally no law in the code that requires a retailer (BG permit holder) to put a lid on a to-go vessel.

And if what has happened to us is a legal precedent, then one can conclude that it’s not long before a TABC agent interprets the code in such a way that filling a Growler equals bottling. And once Growlers are illegal in Texas, who’s then to say that the TABC will not begin issuing citations for mobile canning line companies (an absolute vital service for any upstart craft beer brewery) for illegally manufacturing an illicit product. Honestly, all mobile canning lines literally do is fill and crimp lids on cans full of beer they didn’t make.

See what’s happening here? If this precedent continues down its logical course, it can truly cripple (if not entirely crush) a thriving craft beer industry. And is it really that big of a stretch to think that Big Beer could influence the market and stifle competition by pressuring the TABC to invoke the "crimping equals manufacturing” argument?

Why Do I Care? Why Am I Fighting?

For all the ridiculousness of this case, what keeps me in the fight is simple. As I’ve noted, I am arguing my case from a BG license holding retailer’s perspective as it pertains to the Texas Alcohol Code. And I’m fighting because as a business owner, I think the Crowler is--hands down--the best option for beer to-go sales. For example, I sold 996 Crowlers during a short 6 month period at Cuvee Coffee Bar before they were seized. Yet over the following 12 months (post Crowler era) we have sold exactly 16 Growler fills. That’s a 98.3% loss in sales. I’m fighting because the TABC’s knee-jerk application of non-specific alcohol code is costing my business a substantial amount of money. And I truly believe, along with many others, that they simply got this 100% wrong.

What Have I Learned & When The Hell Will This Be Over?

The court case lasted 3 full days and was enlightening to say the least. During that time, I was able to get to know and find common ground with some of the TABC staff. I can’t help but wonder what would have transpired if we were able to discuss this issue civilly before it got out of control. I mean, Crowlers could still be legal in Texas. But unfortunately, a decision was made and the powers that be have taken a position that must be defended at all costs. They’re between a rock and a hard place, truthfully. Do they answer to the big names lobbying for the extinction of both Growlers and Crowlers or do they respond to reason and an evolving market?

Closing arguments were submitted on October 7th, and the judge was given 60 days to rule. That means we should have a final ruling on or before December 7th. And while it’s been a long year, these last few weeks have felt endless. But we’re almost finished. And above all I want to say thank you to all the incredible support and encouragement from people. You all have been great. Stay tuned. Once we know the ruling, we’ll announce it via social media.


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