Mailing Date: July 30, 2010
Hilltop Beverage, Inc.
RE: Twisted Tea Cardboard Keg
ISSUE: This correspondence is in response to your e-mail inquiry of June 16, 2010, to this office, in which you inquire regarding the legality of selling Twisted Tea “cardboard kegs” of 1.3 gallons each, either as a singularly boxed four (4)-pack or if you may separate the “kegs” for sale to consumers.
Pennsylvania Liquor Control Board (“Board”) records indicate that Hilltop Beverage, Inc. is the holder of Distributor License No. D-3167 (LID 4928) for premises located at 1218 15th Street, Franklin, Pennsylvania.
OPINION: Section 102 of the Liquor Code defines a distributor as
any person licensed by the board to engage in the purchase only from Pennsylvania manufacturers and from importing distributors and the resale of malt or brewed beverages, except to importing distributors and distributors, in the original sealed containers as prepared for the market by the manufacturer at the place of manufacture, but not for consumption on the premises where sold, and in quantities of not less than a case or original containers containing one hundred twenty-eight ounces or more which may be sold separately.
A “case” means “a package prepared by the manufacturer for sale or distribution of twelve or more original containers totaling two hundred sixty-four (264) or more fluid ounces of malt or brewed beverages excepting those packages containing twenty-four (24) or more original containers each holding seven fluid ounces or more.” [47 P.S. § 1-102]. An “original container” means “all bottles, casks, kegs or other suitable containers that have been securely capped, sealed or corked by the manufacturer. . . .” [47 P.S. § 4-431]. A “container” means “any receptacle, vessel or form of package, tank, vat, cask, barrel, drum, keg, can, bottle or conduit used or capable of use for holding, storing, transferring or shipment of . . . malt or brewed beverages.” [Id.]. Finally, a “package” means “any container or containers or receptacle or receptacles used for holding liquor or alcohol as marketed by the manufacturer.” [Id.].
Because the individual “cardboard kegs” meets the volume requirement (i.e., a minimum of one hundred twenty-eight (128) ounces), it would be permissible to sell them singularly, but only if the manufacturer intended that the “cardboard kegs” be sold individually. Specifically, the sale cannot be in violation of section 441(a)(1), which requires that all malt and brewed beverages sold by a distributor or an importing distributor be “in the original containers as prepared for the market by the manufacturer at the place of manufacture.” [47 P.S. § 4-441(a)(1)].
In the alternative, if it is the intent of the manufacturer to sell four (4) as a single container, it would be permissible to sell these “cardboard kegs” in packages of four (4), as long as they are packaged together in a manner that they could not be separated at any point until purchased by the ultimate consumer as one (1) “container.” The reason this would be acceptable is that it would permit importing distributors to “engage in the purchase from manufacturers…outside this Commonwealth….in the original containers as prepared for market by the manufacturer…in original containers containing one hundred twenty-eight ounces or more.” [47 P.S. § 1-102]. Please note that this packaging would not constitute a “case” as defined under the Liquor Code, but rather the group packaging (i.e. shrink-wrapping) would constitute one original “container.”
THIS OPINION APPLIES ONLY TO THE FACTUAL SITUATION DESCRIBED HEREIN AND DOES NOT INSULATE THE LICENSEE OR OTHERS FROM CONSEQUENCES OF CONDUCT OCCURRING PRIOR TO ITS ISSUANCE. THE PROPRIETY OF THE PROPOSED CONDUCT HAS BEEN ADDRESSED ONLY UNDER THE LIQUOR CODE AND REGULATIONS. THE LAWS AND POLICIES ON WHICH THIS OPINION IS BASED ARE SUBJECT TO CHANGE BY THE LEGISLATURE OR THE PENNSYLVANIA LIQUOR CONTROL BOARD.
Very truly yours,
FAITH S. DIEHL
cc: Pennsylvania State Police,
Bureau of Liquor Control Enforcement
LCB Advisory Opinion No. 10-282