I want to point you to excellent reporting by Chris Drosner (aka the Beer Baron) over at the Wisconsin State Journal on the potential impact of the two competing beer tax bills. Check out his article here. We covered the Beer Institute’s Fair BEER Act and the Brewers Association’s Small BREW Act last week here, and through insightful discussion with Chris, edited it to correct and improve our coverage. Good stuff, and glad the Brewery Law Blog can help create a dialogue on these important topics, which is what Doug envisioned when launching five years ago. Most importantly for this story, Chris helps tell the part that keeps getting lost in other coverage; the Fair BEER Act is not just beneficial for “big beer.” Of course, that act would cause the biggest cuts to the federal revenue, but may also position the majority of today’s brewers for the most explosive growth. Check out Chris’s article for more details on that. What do you think?
Note: I should disclose, I’m a member of the Brewers Association. However, as a member and given my position as a small-brewery lawyer, I’m interested in what’s best for craft breweries but also the beer industry at large. At times, the line drawing between “us” and “them” and “our growth” vs. “their growth” can seem less important, and this tax scenario might be a case where everyone could come together and agree that more jobs and growth in the entire beer industry is a good thing. After all, consumers still seem to be cheering for the little guys, even when they’re not so little anymore. I doubt that tax cuts and attendant growth across the board will dupe craft consumers and change their David-leaning preferences. Even if big beer exposes more would-be craft beer lovers to the product through their efforts to become more relevant, I think that, just like all of us did, we’d eventually still see those consumers start coming out to their local taprooms, plugging into the truly craft beer scene, and evangelizing the awesome awesome stuff microbreweries are making today. That excites me more than line drawing on these tax issues here. Either way, passage of some measure of brewery tax reform would be a wonderful thing, and a huge accomplishment for the industry.
Here’s an overview of some TTB brewery requirements related to tax determination. We regularly hear from start-up breweries concerned about complying with TTB’s tax-determination requirements and this is understandable, as the regulations and attendant record-keeping requirements are confusing. Beyond that, this is one of the areas where a homebrewer entering the commercial brewing environment for the first time has a lack of experience and skills. The notes here are no substitute for checking in with your brewery attorney, and potentially taking a cruise through the Code of Federal Regulations to get hip to all of this. Still, here’s an overview of what you’re looking at. More notes on record-keeping will be posted on the Brewery Law Blog before long.
TTB Tax-Determined Beer Overview
Keep in mind that TTB is the Alcohol and Tobacco, Tax and Trade Bureau. Tax is the biggie here. TTB is concerned about protecting the revenue, and they want to make sure you’re not evading tax by serving untaxed beer or miscalculating how much beer you’re producing.
1. Brewery Tax-determination Vessel
In your Brewers Notice, you’ll be asked to tell TTB how you’re measuring your tax-determined beer. For more breweries, this is through calibrated brite tanks. Your equipment supplier can help you understand how these work if you’re not familiar.
2. Calibrating Your Brewery Tax-Determined Beer Measuring System
Note that if you’re using a meter, gauge glass, or the like to measure your tax-determined beer, this is the sort of thing you’ll need to test periodically. This works both ways, no one wants to be overpaying taxes, and TTB doesn’t want to see you underpay, either. In accordance with 27 C.F.R. §25.42, you need to test it “periodically” and maintain the following records in the brewery available for inspection by TTB: (1) Date of test; (2) identity of the meter or the measuring device; (3) result of test; and (4) corrective action taken, if necessary. Note that the variation in the beer meter can’t exceed +/- .5 percent. If it does, that’s when you need to take corrective action to get it as close to zero variation as possible.
3. Using/Labeling Your Brewery’s Tax-Determination Tanks
Pursuant to 27 C.F.R. §25.25, TTB wants your tax-determination tanks labeled in a durable way with the words “tax-determination” tank. Bear in mind that the purpose of the tank is to determine tax every time you add beer to it, and TTB expressly forbids simultaneously pumping into and out of a tax-determination tank. And, note, while it’s always fun to have a “brewer’s tap” in back for the gang to sip on or to offer to visitors, if that’s your beer for consumption, that must be tax-determined beer.
Opening and running a brewery is complicated, and Washington Brewery Law Resources aren’t necessarily all neatly gathered in one place. It can be hard to know where to look when your curiosity encourages you to start poking around. Today, I’ll do my best to help you start your research on how breweries in Washington State are regulated. There’s a bevy of laws/code/regs out there, that’s for sure. Here are some jumping off points for your legal excursions.
Keep in mind, these sources aren’t exactly written with readability as a primary objective. Important nuances pop up in all different places. That’s what we’re here for, if you’re ever not sure about something. Indeed, it’s through the code, and our understanding of it, that we can help answer all kinds of questions on the fly, such as: (1) Can my Washington brewery deliver beer to customers in Seattle?; (2) If I’m only selling beer within Washington’s borders, do I still need a Certificate of Label Approval?; (3) May those under the age of twenty-one come into my brewery without us having food service? The list of fun questions that vary from state to state goes on.
For anyone interested in checking out primary Washington Brewery Law Resources, here are some links along with my notes to help you navigate them.
Washington Brewery Law Resources – State Brewery Law
Revised Code of Washington. This is the law that the state legislature creates and revises. Primarily, you’re looking at the content in RCW 66, although keep in mind that other provisions relating to your business, potential distribution agreements, etc. all fall in other places in the code.
Washington Administrative Code. This is where administrative agencies put their regulations. In Washington, the primary administrative authority is the Washington State Liquor Control Board. They were created by the legislature by way of RCW 66 and given authority to do certain things relating to booze in Washington State. Any regulations they promulgate become part of the Washington Administrative Code. Unfortunately, this means that there are often provisions in RCW that address some of your questions, and then provisions in WAC that address other questions. It just depends on whether the legislature contemplated something or it’s LCB creating regulations by virtue of its authority.
Between those two, that’s the heart of Washington brewery law. Keep in mind there are some sanitation requirements set forth by the Washington State Department of Agriculture, and your compliance therewith is a part of maintaining your LCB microbrewery license. Further, there are some places where the County and your Municipality step in, particularly with respect to health codes and building codes.
Washington Brewery Law Resources – Federal Brewery Law
Of course, we all know that state and local government isn’t the final authority on breweries in Washington. Indeed, Uncle Sam, through the Alcohol and Tobacco Tax and Trade Bureau (TTB), has a say on a number of matters. When it comes to TTB, you’ve got to jump to the Code of Federal Regulations (CFR) to see all the regulations they’ve promulgated, and Title 27 is the place to go. Bear in mind, if you’re brewing off-the-wall beers, such as those without hops, the Food and Drug Administration (FDA) may be your labeling authority. And, very technically, FDA has concurrent authority over your brewing business—but TTB really is the place to go when you have questions of federal brewery law. Fortunately, they’ve put together helpful resources on their website to help you wade through labeling and advertising issues.
Here’s what Red Bull vs. Old Ox Brewery is and what it isn’t. If you read the Brewery Law Blog, you know I love craft beer trademarks more than the average Esquire. Same goes for craft cider trademarks, mead trademarks, the whole lot. Over the last year, I’ve appreciated seeing the public get fired up about a craft beer trademark dispute in the making. Having said that, there’s a lot of misinformation out there. This is especially the case when word of a brewery trademark spat takes off and spreads all over social media, as it definitely has this time. A lot of the misunderstanding stems from not knowing exactly what’s at stake in any given trademark dispute.
What Red Bull vs. Old Ox Brewery isn’t:
This trademark dispute is not a lawsuit over whether Old Ox Brewery can use its name or logo. This dispute has not reached federal court. It is not a lawsuit. That might happen. But, so far, this matter has nothing to do with whether Old Ox Brewery can call itself Old Ox Brewery or whether they can use their logo.
What Red Bull vs. Old Ox Brewery is:
This is an administrative opposition proceeding. This involves whether the United States should grant Old Ox Brewery a federal trademark (which gives you important rights). So, this matter completely involves Old Ox Brewery’s right to register their brand name. It has nothing to do with whether Old Ox Brewery can use that brand name. Of course, Old Ox Brewery may not want to use a brand name if they can’t use it with the benefit of important federal trademark rights.
How the Red Bull vs. Old Ox Brewery dispute came to be:
We can’t know all the details and interactions. But, here’s how these sorts of proceedings typically get started.
The United States Patent and Trademark Office (USPTO) examines every trademark application that comes in, and looks to see whether the mark should be allowed to register. There are technical defects in applications, and then there are issues like the mark being too descriptive or too similar to another registered mark.
If USPTO thinks the mark is okay, the mark publishes for thirty days for others to review. Here, Old Ox Brewery’s marks published on September 30, 2014.
Publication is a chance for everyone else outside of USPTO to protect their interests. Whereas USPTO may not find a problem with a mark during its limited review, actual brand holders have an important stake in their brand. They may see an issue with a potential mark that USPTO doesn’t or doesn’t catch, and publication gives everyone a chance to prevent a mark from registering. Keep in mind, if a mark registers, it gets important rights and becomes more difficult to combat.
Red Bull no doubt has a legal team all over the USPTO Gazette (where marks publish each week). Notably, beer is in the same trademark class (032) as energy drinks, soda, bottled water, etc. That’s likely how Red Bull found it so quickly. They monitor Class 032 every week for problematic uses. However, bear in mind class has nothing to do with whether two marks are confusingly similar, it’s merely an administrative convenience for USPTO. Confusing similarity will turn on a number of things, including comparing the actual goods in the application vs. Red Bull’s.
Why Red Bull is doing this, even if you don’t think the marks are similar:
Opposition proceedings are relatively cheap. If a trademark owner sees a problem with another mark, an opposition proceeding can quickly nip it in the bud. It costs $300 to file and not much time to prepare a notice of opposition. On the other side, often small brands feel scared and don’t want to fight (or don’t have the funds to fight), so they willingly abandon their mark. This is often the case when it’s an intent-to-use mark (as Old Ox Brewery’s is), which typically means the mark isn’t yet in use at all or, at the very least, hasn’t been used too widely for very long. It appears Old Ox Brewery has been in operation for about seven months. So, $300, one filed document, and Red Bull potentially never has to worry about whether the Old Ox marks really are confusing again—because they’re gone. Some might think that’s bullying, others might think it’s effective brand protection.
What often happens behind the scenes in scenarios like the Red Bull v. Old Ox Brewery:
Usually, everyone wants out of an opposition proceeding. Here, Red Bull admittedly has a lot more in its cash reserves than the typical opposer. What can happen is that the two brands come to some agreement. They iron out a “coexistence agreement” which is essentially a plan for both brands to coexist in the marketplace to avoid consumer confusion. That might mean that one brand avoids the other’s colors and imagery or that Old Ox Brewery never makes an energy drink or a soda of any kind. In fact, given Red Bull’s statements to the media, it looks like they do want to iron something out:
“Red Bull has not sued anyone. Brands, big and small, seek to protect their trademarks every day. All we are asking for is to allow the administrative process at the US Patent & Trademark Office to run its course and we remain hopeful that a fair settlement can be reached by both parties.”
What could happen in Red Bull v. Old Ox Brewery:
If they don’t strike up a coexistence agreement, a few things could happen. Old Ox Brewery could forget about its trademarks and give up fighting on the USPTO front. As I highlighted before, though, this has nothing to do with whether Old Ox Brewery can use those marks. This is not a lawsuit. We might expect a full-on lawsuit from Red Bull in federal court, which they could file at any time given Old Ox is using their marks already in a territory Red Bull no doubt is in. Whatever you think of Red Bull’s merits in the lawsuit, they certainly have the most cash in the bank to drag things out and make it hurt. Thus, we typically a smaller brand like Old Ox Brewery just change its name, to avoid sinking cash into something like this, when it could be using that money to fuel its awesome growth. Meanwhile, whatever the outcome, Red Bull has scared off other users from adopting anything with the word “Ox” in the name going forward, showing everyone just how broadly they construe their brand. We’ll see where this one goes.
It’s also worth keeping in mind that beyond any confusing similarity between the marks, Red Bull can also toss in a claim of trademark dilution. If you have a famous mark, there’s an additional mechanism to protect it. We didn’t see this ground included in Red Bull’s Notice of Opposition, but it’s certainly something extra we might see tossed into any federal lawsuit, which would add even more to defend against, whatever you think of the merits.
Red Bull v. Old Ox Brewery, The Wrap-up:
I hope that gives everyone better insight into the Red Bull v. Old Ox Brewery matter. When reviewing an emerging trademark dispute, it’s important to pay attention to where it is procedurally. Is this in federal court involving a right to use a mark? Or is this an administrative proceeding before the Trademark Trial and Appeal Board involving a right to register a mark? That can help onlookers understand exactly what’s at stake. For more on trademark law, and why federal trademark rights matter, see our Brewery Trademark Law Explained (In a Nutshell)post here.
Edit: 2/15/2015 at 8:55pm PST. Thanks to journalist and Twitter comrade @WSJbeerbaron (Chris Drosner) who is working on a piece for The Beer Baron column relating to beer tax reform, he spotted a correction for the article. I had read language in the Fair BEER Act to maintain certain production rate carveouts for smaller producers. ‘Tis not the case. I have updated the article and calculations to reflect this. Cheers to Chris for taking on this heady issue to get the word out; I’ll link to his article when it’s in. I anticipate he’ll have a lot of great analysis coming your way.
Beer tax reform might be on the horizon, as two competing bills are teed up for debate in Congress. On the one side is the Beer Institute, which advocates for all sizes of breweries but is known for having Anheuser-Busch InBev and MillerCoors among its interested parties. They’re standing behind the Fair BEER Act and, as we’ll get to in a minute, the majority of breweries out there may be the biggest fans of what this act would offer. Another bill out there is the Small BREW Act, which the Brewers Association is behind. The Brewers Association advocates for the interests of those brewing under 6 million bbl per year. As we all know, that 6 million bbl distinction is big enough to sweep in a brewery like Boston Beer Co. (Sam Adams), but small enough to keep the two big guys out. As you’ll soon see, the Small BREW Act spells tax breaks across the board, including advantageous ones for the pretty-big-but-still-craft breweries, but not as dramatic of breaks for the majority of breweries in America. The Fair BEER Act would provide lowest tax rates of all.
What do the federal beer tax bills look like, whose interests are we looking at here, and why should you care? Let’s start with how federal brewery tax law operates right now. Then, I’ll walk through each of the proposed bills, and wrap up with examples comparing tax rates for different-sized brewing operations under all three schemes. Let’s dig in.
Brewery TTB Tax Law Part I
How Beer is Taxed Right Now at the Federal level
Presently, the Alcohol and Tobacco Tax and Trade Bureau taxes beer at two different per-barrel rates. There’s the Regular Rate of $18. Then, there’s the Reduced Rate of $7. Here’s how those rates are applied:
Small Breweries – 60,000 bbl or less? Pay $7/bbl
If you brew 60,000 bbl or less in a year, like the vast majority of breweries, you pay the Reduced Rate of $7/bbl (in addition to whatever your state tax rate may be).
If you brew more than 60,000 bbl but less than 2 million bbl (such as a brewery like New Belgium or Dogfish Head, for example), you pay a mixed rate. You get to take advantage of the $7/bbl rate for your first 60,000 bbl ($420,000, which is up to a discount of $660,000 off the regular rate). After that, you must pay the Regular Rate of $18/bbl for the rest of your lot.
If you brew more than 2 million bbl (so, the two big guys, and also a brewery like Boston Beer Co. (Sam Adams) or D.G. Yuengling & Son (Yuengling)), you pay the Regular Rate of $18 for everything. The prime point being, they’re paying $11 more per barrel on the first 60,000 bbl than everyone else (that’s $660,000 more on those barrels).
As we all know, everyone would love to pay less, and that’s what this is about.
Brewery TTB Tax Law Part II
Fair BEER Act – Backed by the Beer Institute (Which includes the interests of Anheuser-Busch InBev and MillerCoors)
This bill would offer the most tax advantages to the vast majority of breweries out there, eliminating federal excise tax altogether for the typical neighborhood brewery and most that are engaged in community-wide distribution. At the same time, this bill would make even the biggest of brewers eligible for tax breaks. Essentially, it’s a graduated scale that applies to all breweries—and almost all breweries (90%) are at the bottom of the scale, which would mean zero excise taxes. Take a look.
The first 7143 bbl: Pay $0/bbl.
-Thus, if you brew under 7,144 bbl/year, you’d pay no federal excise tax. $0. This would mean roughly 90% of American breweries would pay no federal excise tax. This sounds pretty good for all of the small breweries and start-ups out there. Keep in mind that 7,144 bbl/year is more than 137 bbl produced per week. That’s a lot of headroom for most of our breweries today. Indeed, likely far more than the wildest dreams of many of the family-owned breweries we’re seeing nestle into our neighborhoods. Just to ground the numbers, that’s more than 13 brew days a week on a 10bbl system. Not possible.
The 7144th bbl/year to 60,000th bbl: Pay $3.50/bbl.
-If you brew more than 7144 bbl/year and up to 60,000 bbl/year, you’d see your federal excise taxes cut in half. It’d be just $3.50/bbl. To ground that bbl/year figure, 60,000 bbl/year would translate to more than 1153 bbl/week. If you had a 100bbl system, that’d be more than 11 brew days a week. Again, not possible.
From the 60,001 bbl/year to 2 million bbl: Pay $16/bbl.
-So, this is a cut for the “medium” breweries noted above—eligibility for the lower breaks, with $2 off per barrel thereafter up until the two millionth bbl.
Everything after the 2 millionth bbl in a year? Pay $18/bbl.
-No change. This is the current rate, just that it only starts applying at your 2 millionth bbl. Before that, all breweries are eligible for the reduced rates on initial bbl leading up to it.
The Wrap-up on the Fair BEER Act:
Federal excise tax would be eliminated for nearly all craft breweries, putting an extra $7/bbl back into the brewery’s pocket. Most notably, huge breweries would get a break on beer leading up to the two millionth bbl. We’ll see how this plays out when we crunch the numbers later.
Brewery TTB Tax Law Part III
The Small BREW Act backed by the Brewers Association:
Craft Breweries – <6,000,000 bbl/year
-Change the definition of Small Brewery from those that produce under 2 million bbl/year to those that produce under 6 million bbl/year. So, sweep in folks like Boston Beer Co., just like the Brewers Association definition does by its definition.
-Create the following tax structure for all Small Breweries:
$3.50/bbl on the first 60,000 bbl (That’s the current reduced rate cut in half)
$16/bbl on the next bbl leading up to 1,940,000 bbl (a reduction of $2/bbl, but also a reduction on the quantity of barrels it applies to.)
$18/bbl on everything beyond 1,940,000 bbl.
Not Craft Breweries – >6,000,000 bbl/year
-$18/bbl on everything.
The Wrap-up on the Small BREW Act:
For most breweries, federal excise tax would be cut in half. The biggest winners are the folks like Boston Beer Co., who would become eligible for the reduced rate on the first 60,000 bbl and also a $2/bbl cut on a bunch of beer, too. Huge savings here, as we’ll walk through in a second. Though, again, for the majority of breweries in the United States, the tax breaks are not as dramatic under the Small BREW Act as they are under the Fair BEER Act.
Brewery TTB Tax Law Part IV
The three tax programs compared (Current, Fair BEER Act, and Small BREW Act):
Before providing a look at real numbers below, the gist is this. The Fair BEER Act would result in the lowest taxes of all strategies, and it impacts the majority of breweries in the United States by eliminating federal excise tax entirely. The biggest difference in federal brewery tax policy with the Fair BEER Act is that the biggest of the big remain eligible for significant tax breaks. In contrast, the Small BREW Act would result in more even-handed savings for craft breweries, no matter the size, but provide no benefits to the big guys. Nevertheless, the Small BREW Act lets a swath of extremely-big-but-still-considered-to-be-craft brewers get in on the tax breaks, while keeping things the same for the biggest of the big. (Side note here about conglomerates, just so no one is confused. These are called “controlled groups” and tax rate eligibility is calculated by adding up all of the production rates of all of the breweries within the group. So, just because A-B InBev owns Elysian now, they wouldn’t get tax benefits off of Elysian’s production rate.)
Check out the numbers below—note that I’m using formulas, but they were formulas made by this human whose best skills undoubtedly tip on the verbal side. The figures should give you the big picture of the competing bills, what’s at stake, and why different breweries at different sizes feel the way they do. If you spot any errors, please let me know—and I invite someone to make a fluid graph of all of the equations, which is beyond the time I have for this project at the moment:
If you brew 100 bbl/year:
Current Federal Excise Taxes on Beer: $700 Federal Taxes Under the Fair BEER Act (FBA): $0
Federal Taxes Under the Small BREW Act (SBA): $350
If you brew 500 bbl/year:
Current: $3,500 FBA: $0
If you brew 1,000 bbl/year:
Current: $7,000 FBA: $0
If you brew 5,000 bbl/year:
Current: $35,000 FBA: $0
If you brew 7,000 bbl/year:
Current: $49,000 FBA: $0
If you brew 7,143 bbl/year:
Current: $50,001 FBA: $0
If you brew 7,145 bbl/year:
Current: $50,015 FBA: $7 SBA: $25,007.50
If you brew 10,000 bbl/year:
Current: $70,000 FBA: $9999.50 SBA: $35,000
If you brew 20,000 bbl/year:
Current: $140,000 FBA: $44,999.50 SBA: $70,000
If you brew 50,000 bbl/year:
Current: $350,000 FBA: $149,999.50 SBA: $175,000
If you brew 59,999 bbl/year:
Current: $419,993 FBA: $184,996 SBA: $209,996.50
If you brew 60,001 bbl/year:
Current: $420,018 FBA: $185,015.50 SBA: $210,016
If you brew 80,000 bbl/year: (Deschutes at approx. 89,000 bbl)
Current: $780,000 FBA: $504,999.50 SBA: $530,000
If you brew 100,000 bbl/year:
Current: $1.14 million FBA: $824,999.50 SBA: $850,000
If you brew 150,000 bbl/year: (Dogfish Head at approx. 175,000 bbl)
Current: $2.04 million FBA: $1.62 million SBA: $1.65 million
If you brew 200,000 bbl/year:
Current: $2.94 million FBA: $2.42 million SBA: $2.45 million
If you brew 250,000 bbl/year:
Current: $3.84 million FBA: $3.24 million SBA: $3.25 million
If you brew 300,000 bbl/year:
Current: $4.74 million FBA: $4.02 million SBA: $4.05 million
If you brew 500,000 bbl/year: (New Belgium at approx. 712,000 bbl; Sierra Nevada at approx. 800,000 bbl)
Current: $8.34 million FBA: $7.22 million SBA: $7.25 million
If you brew 1,000,000 bbl/year:
Current: $17.34 million FBA: $15.22 million SBA: $15.25 million
If you brew 1,500,000 bbl/year:
Current: $26.34 million FBA: $23.22 million SBA: $23.25 million
If you brew 1,939,999 bbl/year:
Current: $34.26 million FBA: $30.26 million SBA: $30.29 million
If you brew 1,940,001 bbl/year:
Current: $34.26 million FBA: $30.26 million SBA: $30.29 million
If you brew 1,999,999 bbl/year:
Current: $35.33 million FBA: $31.22 million SBA: $31.37 million
If you brew 2,000,001 bbl/year:
Current: $36 million
FBA: $31.22 million SBA: $31.37 million
If you brew 2,500,000 bbl/year: (approximately Boston Beer Company)
Current: $45 million FBA: $40.22 million SBA: $40.37 million
If you brew 5,999,999 bbl/year:
Current: $108 million FBA: $103.22 million SBA: $103.37 million
If you brew 6,000,001 bbl/year:
Current: $108 million FBA: $103.22 million
SBA: $108 million
If you brew 67,000,000 bbl/year: (approximately MillerCoors)