When I was a kid I watched Sesame Street and The Electric Company. One of the shows had this bit where there would be four items on the screen. Three were alike, and one was not. The point was to identify which of the four was not like the others. There was a catchy jingle that went along with the images, and if you have ever heard it, you very well know the definition of an ear worm.
I love craft beer. I love craft breweries. And my love of craft beer and craft breweries makes me ponder my own adult version of “one of these things is not like the other.” So keeping with the memories of my childhood, imagine you have four images before you: a winery, a distillery, a brew pub and a brewery. One of these things is not like other, at least under existing Texas law when it comes to on-site purchases for off-site consumption.
All four allow a consumer to purchase alcohol onsite for onsite consumption. But under existing Texas law, I can go to a winery, a distillery, or a brew pub and buy the alcohol produced by these three entities and take the alcohol home. A brewery is not like the other three. I cannot go to a brewery and buy beer to take home and drink.
There is a lawsuit challenging the distinction pending in the Western District of Texas. The case is Deep Ellum Brewing Company, LLC v. Texas Alcoholic Beverage Commission, Civil Action No. 1:15-cv-00821, Honorable Robert Pitman presiding. Deep Ellum Brewing contends that there is no rational basis for distinguishing a brewery from a winery, distillery, or a brew pub. Therefore, the distinction does not past muster under the Equal Protection Clause or the Due Process Clause. TABC, predictably, contends that there is a rational basis for treating breweries differently from wineries, distilleries, and brew pubs. Both sides have moved for summary judgment.
This is the second legal challenge mounted by craft breweries to address a few holes left by the 2013 legislative session that otherwise favored the Texas craft beer industry. The first legal challenge was over the prohibition against craft breweries receiving compensation from distributors for the rights to distribute craft beer in Texas. Three craft breweries (Live Oak Brewing in Austin, Peticolas Brewing and Revolver Brewing in Dallas-Fort Worth), argued that they should be able to sell distribution rights and use the capital raised to grow their businesses. In August 2016 a state judge ruled that prohibiting craft breweries from receiving compensation from distributors was unconstitutional.
I personally don’t understand why breweries should be treated differently from wineries, distilleries, and brew pubs. But every time I think about it, that song pops back into my head. Please, Judge Pitman, I need some relief.