Alternative Purchase and Sale Options for Breweries, Distilleries, Wineries, and Retailers in Response to COVID-19 Coronavirus Outbreak

By: John J. Moran

March 19, 2020, 1:00 P.M., E.S.T.

Please note that the information listed in this legal alert is subject to change at any time without notice.

On Friday, March 13, 2020, President Donald J. Trump declared the COVID-19 coronavirus outbreak as a national emergency and, shortly thereafter, on Sunday, March 15, 2020, ME Governor Janet T. Mills declared the outbreak as a civil, state of emergency – both of which followed the World Health Organization’s declaration on Wednesday, March 11, 2020, that the outbreak is a “pandemic”. The World Health Organization generally defines a “pandemic” as “the worldwide spread of a new disease” (e.g., COVID-19).

As of the date and time of this legal alert, breweries, distilleries, and wineries, together with their fellow suppliers, distributors, retailers, continue to brace for the impact that the outbreak and the ongoing efforts to contain and reduce the spread of it (e.g., social distancing) could have upon their current and near-future business operations.

Accordingly, the purpose of this legal alert is to identify some of the less conventional options by which breweries, distilleries, and wineries and, to some extent, retailers, can modify their business operations to continue to allow for the purchase, sale, and delivery of their products during this time, as follows:

1. Alternative Purchase Options for Manufacturers (“Online/Over-The-Phone Payments”) – The state liquor laws allow consumers to purchase products for off-premises consumption (i.e., products “to-go,” such as cans, bottles, kegs, etc.) directly from a brewery, distillery, or winery via online payment or over-the-phone payment – in addition to in-person payment.

2. Alternative Pick-Up Option for Manufacturers (“Curbside/Roadside Pick-Up”) – If a consumer purchases products for off-premises consumption from a brewery, distillery, or winery via on-line payment or over-the-phone, then the state liquor laws allow consumers to pick-up the products in the parking lot of the brewery, distillery, or winery, so long as (a) the consumer presents an employee (but not an independent contractor) of the brewery, distillery, or winery with a valid form of identification, (b) the consumer is at least twenty-one (21) years old, and (c) the consumer is not visibly intoxicated.

3. Alternative Delivery Option for Manufacturers (“Home Delivery”) –

a. Manufacturer Delivery – Likewise, if a consumer purchases products for off-premises consumption from a brewery, distillery, or winery via online payment or over-the-phone, then the state liquor laws also allow an employee (but not an independent contractor) of the brewery, distillery, or winery to distribute and deliver the purchased products directly to the consumer’s home, so long as (i) the employee is at least twenty-one (21) years old, (ii) the consumer presents the employee with a valid form of identification, (iii) the consumer is at least twenty-one (21) years old, and (iv) the consumer is not visibly intoxicated.  The state liquor laws do not allow a brewery or a distillery to ship any products to a consumer by mail, but they do allow a winery to do so, so long as the winery holds the appropriate license and complies with applicable law.

b. Third-Party Delivery – Similarly, the state liquor laws allow a consumer to purchase products for off-premises consumption of a brewery, distillery, or winery from a third-party delivery service, so long as (i) the brewery, distillery, or winery does not engage a third-party delivery service to provide delivery services on behalf of the brewery, distillery, or winery, or imply that the brewery, distillery, or winery has done so (e.g., social media announcement that the brewery, distillery, or winery is “working with” or “partnering with” a particular third-party delivery service), (ii) the consumer places the purchase order directly with the third-party delivery service and not with the brewery, distillery, or winery, and (iii) the third-party delivery service otherwise complies with age and sobriety verification requirements upon delivery of the products to the consumer.

4. Alternative Pick-Up and Delivery Options for On-Premises Retailers (“Curbside/Roadside Pick-Up” and “Home Delivery”) – On March 18, 2020, ME Governor Janet T. Mills issued an executive order providing that, among other things, on-premises retailers, such as bars and restaurants, that offer carry-out, delivery, and drive-through food services can also sell beer and wine products to consumers for off-premises consumption, so long as (a) the beer and wine products are in the original manufacturers’ sealed containers, and (b) the purchase of the beer and wine products are part of a food purchase that is consistent with the food sale requirements under the retailer’s on-premises retail liquor license.

Moreover, a brewery, distillery, winery, or retailer should also be sure to maintain proper records of any and all purchase and sale transactions that are completed through one or more of the options above.

Lastly, a brewery, distillery, winery, or retailer should review any and all existing contracts with its lenders, landlords, suppliers, distributors, and other interested third parties to understand its payment and performance obligations in light of a pandemic, such as the COVID-19 coronavirus outbreak.

As a friendly reminder, this legal alert does not offer, and should not be interpreted to offer, legal advice.

For more information, please contact John J. Moran. Learn more about our Coronavirus Legal Response Team and Craft Food and Beverage Industry Group.