craft-beer-week-new-york-city-photo-ccWhile small breweries around the country were providing consumers with new tastes and quality beer, Florida lagged behind.  Just as Florida lagged behind in the craft brew craze, Florida’s laws lag behind the rest of the country as Florida’s craft beer industry is burgeoning.  Specifically, Florida’s craft breweries can fill its consumers’ 32 ounce (1 quart) and 128 ounce (1 gallon) growlers ((A growler is a refillable container or jug into which tap beer is poured for home consumption.)), but any sizes in between are illegal.  That includes, of course, the 64 ounce growler, which also happens to be the industry’s standard size. ((The 64 ounce growler is also illegal in Utah.))

During Florida’s recently completed legislative session, a bill was introduced that would have legalized the 64 ounce growler.  The bill died in the Business & Professional Regulation Subcommittee.  Why?  (Lobbyists/Special Interests).  Some have couched the reasons in terms of public health/safety.  Senator Tom Lee, the man behind a change in the law that legalized all sizes 32 ounces and under at the turn of the century, ((Previously, Florida only allowed beer to be sold in bottles of 8, 12, 16 and 32 ounces, greatly limiting the selection available.)) argues that it’s common sense that the 64 ounce growler would be illegal. ((http://www.tampabay.com/news/business/retail/size-matters-craft-brewers-challenge-floridas-beer-container-laws/1213918.))  He says the reason is simply “moderation” and that larger beer sizes could lead to overconsumption and increased drunk driving.

That’s not terribly logical.  The fact that 128 ounce growlers are legal is a good place to start discrediting that argument.  One might expect that the 128 ounce growler size would be more likely to force quick and excessive drinking.  Once the growler is opened, there is only a short period of time until the beer begins to go flat, thus encouraging consumers to drink it quickly.  Moreover, a consumer is free to fill as many 32 ounce growlers as he/she wants.  It’s more costly, however, to fill two 32 ounce growlers and many tourists will travel with the standard 64 ounce growler (causing them to leave a brewery without any product to take home and leaving the brewery with fewer sales than otherwise possible).  Another economic consideration is that the 64 ounce growler is the industry standard, so their mass production makes them less expensive for breweries to purchase.  Sky Conley, co-owner of Hourglass Brewery near Orlando, FL, explained to Orlando Weekly “that gallon growlers cost about six or seven times more for the minimum order” and “[i]t would have been a lot more cost-effective to start with half-gallon growlers.” ((See http://orlandoweekly.com/news/no-growlers-allowed-in-florida-1.1457386))

It is somewhat reminiscent of the large-sugary-drink-ban nearly implemented in New York (of course, the sugary drink rule was almost implemented while Florida’s law has been in place for quite a while).  There, New York City’s Board of Health set in place a plan to limit the size of sugary soft drinks sold in restaurants, movie theaters, stadiums and arenas to no more than 16 ounces a cup, citing health concerns.  Of course, New Yorkers were still free to purchase as many 16 ounce cups of sugary soft drinks as they wanted (no limit on refills).  New Yorkers could also purchase sugary soft drinks from some establishments but not others.  A number of groups filed a lawsuit seeking to halt implementation of the measure and the state court issued a permanent injunction, declaring it arbitrary and capricious.  The court held that the loopholes inherent in the rule, such as placing no limit on refills, rendered the rule arbitrary and capricious.

Florida’s ban on 64 ounce growlers is similarly fraught with loopholes, appears illogical and stifles the craft beer industry in Florida.  Is it unconstitutional?