Most are probably aware now that a lawsuit has been filed against the State of Florida (the Secretary of Florida’s Department of Business and Professional Regulation, which oversees the Division of Alcoholic Beverages and Tobacco and the Director of the Division of Alcoholic Beverages and Tobacco) seeking a declaration that Florida’s container size limitations are unconstitutional and enjoining enforcement of the container size limitations. Those container size limitations ban all containers between 32 and 128 ounces, thus making it illegal to sell or fill the industry standard 64 ounce growler. The suit was filed on behalf of a craft beer retailer that operates in Stuart.

Now that the suit has been filed, what kind of interesting things may follow? First, will the State defend this lawsuit? It’s relatively indefensible and may just be a waste of time and money. Defendants must simply prove that the challenged law is rationally related to a legitimate government interest. It is as simple and lenient as it sounds. It is the most lenient standard for judicial review available. Plaintiff has the burden of proving that the law serves no conceivable legitimate purpose. This test will be used because the law does not implicate a fundamental liberty interest of suspect classification. Essentially, if Defendants can come up with a rationale for the law that makes the court think “hmmmm, that kind of makes sense”, then they prevail.

Some in Florida’s Legislature have claimed in the past that the reason for the law is simply “moderation” and that larger beer sizes could lead to overconsumption and increased drunk driving. There would at least be some small amount of rationality to that argument if growlers weren’t available in 128 ounce containers. It would also make some bit of sense if you could not purchase multiple 32 ounce growlers. It would make sense if this was a law that did not allow customers to purchase more than some limit of alcoholic beverages per day (granted, that would be difficult to enforce given that consumers could just go to separate retailers or stockpile beer at home to drink in one sitting). It might make sense if it applied the same way to other alcoholic beverages. It does none of those things. Because you can go out and purchase multiple 32 ounce growlers, 128 ounce growlers or beer for consumption off premises in containers that add up to more than 128 ounces (and between 32 and 128 ounces), there is no legitimate argument that the law helps to avoid overconsumption/drunk driving. The same is true of any other potential claims of health concerns.

What could it possibly be about single containers between 32 ounces and 128 ounces that would cause some sort of negative issue with health or otherwise? There is nothing.

I wrote in the middle of 2013 that Florida’s growler law was much like New York’s proposed sugary drink ban. There, the Mayor and the Board of Health approved a regulation that would have banned food service establishments from serving sugary drinks in sizes larger than 16 ounces. It did not stop consumers from purchasing multiple 16 ounce sugary drinks, did not apply to all kinds of sugary drinks and it exempted convenience stores and supermarkets, where consumers purchase most of their sugary drinks. These loopholes ultimately doomed the ban, which was declared unconstitutional the day before it was set to take effect.

What kind of arguments can be made that would not make the one making the argument sound ridiculous?

It will be interesting to see if the State even has an interest in defending the suit. Why would they? The law does absolutely nothing to further any of their interests (unless those interests ultimately include some sort of desire to protect big beer). Even then, this law does nothing to actually help big beer interests. Not allowing the change does potentially give the Defendants (and possibly big beer) the ability to show those in the craft beer industry that they will not allow the industry to evolve. While the growler is not going to make or break the craft beer industry, it may simply serve as the first step in necessary and logical change.

Will anyone else get involved? Will any third parties seek to intervene? If the AB distributors that were so active during the prior legislative session sought to intervene and become a party to the case, it would not do much more than show that one of their main interests is in seeking to show those in the craft industry who is boss. We’ll see how it goes.