Ohio Beer Counsel
Information and Commentary on the Issues Facing Ohio's Craft Beer Community, Breweries and Distilleries - Brewed by the Craft Beer Lawyers of Bruns, Connell, Vollmar & Armstrong's Brewery & Distillery Practice Group
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Ohio to Remove the ABV Cap Entirely?!?

THIS IS WHAT PROGRESS LOOKS LIKE

THIS IS WHAT PROGRESS LOOKS LIKE

Ohio's Senate just approved changes to HB 37 (full language of substitute bill here) and submitted Sub. HB 37 back to the House for its consideration and approval.  The big news here is that the substitute bill removes the ABV cap for beer in Ohio.  That would free up Ohio Craft Brewers to make high gravity beers right here; and allow other brewers to sell their high test brews here as well.  We are cautiously optimistic that the measure has enough momentum to pass the House as well.

What else is in this bill?

As eluded to in the Legislative Service Commission summary, the bill states that the Liquor Control Commission may adopt rules which require the label on every "package, bottle, and container" to state the percentage of alcohol by volume and that the beer is a "high alcohol beer."  This language is somewhat confusing in that the language of the statute seems to give Liquor Control discretion in whether it adopts the rules, but, if it does adopt them, requires the "high alcohol" content label.  The devil will be in the details if this version survives the House.

The bill also has language which deals with exemptions to the open container law.  The exemptions are very specific, and so specific that one may be unconstitutional.  The first exemption provides that a person may have an open container of beer or liquor on the premises of a market if the beer or liquor was purchased from a D liquor permit holder located in the market.  For this exemption, "market" is one that leases space to vendors, not less than 50% of which are retail food establishments or food service operations; has an indoor sales floor area not less than 22,000 square feet, and hosts a farmer's market each Saturday from April through December. 

The second open container exemption applies if the beer or liquor was purchased from an adjacent D liquor permit premises; and, the market is hosting an event pursuant to an F-8 permit held for the market, has notified Liquor Control of the event, and grants permission for the possession and consumption within the defined F-8 permit premises.  Interestingly, the bill defines market under the second exemption as a market "that has been in operation since 1860 and for which an F-8 permit is held."  An F-8 permit allows non-profits that manage publicly owned property to sell beer or liquor by the individual drink at events.  As the Legislative Service Commission points out in its analysis, if there is only one market that has been in operation since 1860, this provision may violate the Ohio Constitution's prohibition on special legislation.

Because we are approaching the end of the current Legislative session, there are always a lot of fast moving bills.  We will keep an eye on this for you.  Updates at once!

Cheers!

Kevin