Alcoholic Beverage Marketing and Food Packaging and Labeling in the COVID-19 Era

By: Mindy Abern and Tatyana Ruderman

If you missed ILG’s Food & Alcoholic Beverage Law and Labeling in the COVID-19 Era webinar, do not fret. Below is a summary of key takeaways that we discussed, as well as resources that your organization might find helpful in adapting to the changing regulatory framework we are seeing in both the alcohol and food industries.

ALCOHOLIC BEVERAGES / COVID-19 REGUALTIONS & ENFORCEMENT

We summarized the myriad ways in which states are trying to help retailers find alternatives for selling alcoholic beverages, including the loosening of rules on to-go and delivery of beverages from on-premise retailers; the extension of deadlines related to renewal of liquor licenses in various states; and the federal relaxation of rules related to returns of alcoholic beverages due to COVID-19. Here are some key takeaways from this portion of our program:

• Generally speaking, various segments of the alcohol industry have been deemed “essential businesses.” Likewise, alcoholic beverage control agency employees have also been deemed essential workers in most, if not all, states.

• Off-premise retailers (i.e., liquor stores and grocery stores) remain open for in-person business almost everywhere, with a very few exceptions.

• On-premise retailers (e.g., bars and restaurants) are permitted to sell alcohol to-go in some form in most states, though each state has imposed conditions on such sales that licensees should be aware of.

• Even with relaxed regulations, it’s important to understand and comply with all underlying liquor laws, which remain in full force.

• The three-tier regulatory system that’s been in place nationwide since the end of prohibition still exists, and likewise will still be in force long after the pandemic is over.

SOME EXAMPLES OF REGULATORY & INDUSTRY RESOURCES

• The National Alcohol Beverage Control Association (NABCA)has a dedicated COVID-19 Resources page, which includes interactive dashboards and regulatory updates from all 50 states.

• The California Alcoholic Beverage Control’s COVID-19 Law and Policy page includes the ABC’s first, second and third notices of regulatory relief (which, together, detail the expanded privileges the state is allowing during the pandemic shelter-in-place), as well as industry advisories (including advisories on delivery and the reopening of licensed premises).

• The Texas Alcoholic Beverage Commission’s COVID-19 page includes the TACB’s Order on Pickup and Delivery and an Alcoholic Beverage Sales Chart that describes new privileges that are being allowed in response to COVID-19.

• The Illinois Liquor Control Commission’s COVID-19 page includes its March 16 Order on loosened alcoholic beverage regulations; its March 29 Bulletin clarifying its position on to-go cocktails from on-premise establishments; and its April 30 guidance on returns.

• The New York State Liquor Authority’s COVID-19 Guidance on Restrictions, To-Go and Delivery can be found here.

• The New Mexico Alcoholic Beverage Control’s home page includes COVID-19 related information, including the ABC’s May 1st letter reiterating that the state has not authorized either delivery or curbside pickup of alcoholic beverages.

• The Alabama Alcoholic Beverage Control Board’s COVID-19 updates can be found here, including its Emergency Curbside Sales Authorization.

• Wisconsin’s Safer at Home Order sets forth what on-premise retailers may do in terms of alcoholic beverages (in short, carry-out of beverages is permitted with the sale of food; delivery is prohibited). The Wisconsin Department of Revenue also has published this Alcoholic Beverage Guidelines and Information Related to COVID-19, which contains further details on what is permitted in terms of carry-out by various types of licensees.

• The Federal Alcohol Trade & Tobacco Bureau (TTB) also has a COVID-19 resource page, which includes trade practice industry circulars. The TTB recently published this May 8 Industry Circular that addresses questions related to the Federal Alcohol Administration Act and its application to a variety of trade practices, including product returns, extension of credit terms, the furnishing of gift cards to consumers, donations to charities, and providing hand sanitizer to consumers.

FOOD LABELING & REGUALTIONS

We also went over the temporary relaxation of various food laws that, for example, allow restaurants to sell surplus items that they cannot use for purposes of dine-in services, but that are in high demand by consumers (such as flour and eggs). Helpful resources for monitoring the new, relaxed food regulations are as follows:

• The Food and Drug Administration has a COVID-19 resource page that includes a newly published Food Safety Checklist, as well as numerous constituent updates on topics ranging from egg distribution (see here and here), menu labeling, nutrition labeling, and flexibility of rules that apply to on-site audits under the Food Safety Modernization Act.

• Helpful pre-COVID-19 FDA resources include What’s New with the Nutrition Facts Label, Guidance for Industry: Menu Labeling Supplemental Guidance and Questions and Answers on the Menu and Vending Machines Nutrition Labeling Requirements.

• The U.S. Department of Agriculture (USDA) has issued this Press Release on food safety compliance during the COVID-19 outbreak. The USDA’s background document on Salmonella Verification Sampling can be found here.

In addition InfoLawGroup recently hosted several webinars on other topics we are seeing in our practice areas. Although we chose not to record them, we have posted on our Insights page key takeaways from each. Jamie Rubin discussed sweepstakes, ecommerce and contracts HERE. Justine Young Gottshall’s and Mark Paulding’s focused on privacy and data security discussion HERE and you can read the key points from Heather Nolan’s charitable program discussion HERE.