Beer Marketer's Insights

Beer Marketer's Insights

Crown’s not only on a business roll.  It just won big battle vs Calif distrib Classic, which sued Crown for not allowing it to buy Haralambos’ Crown biz back in 2010.  Calif Ct of Appeal panel of judges just tossed that case in rare review (“writ of mandate”) after Calif Superior court originally denied Crown’s bid for summary judgment.  So, expected (and dreaded by some) trial over 3-year-old deal that didn’t happen, won’t happen.  Haralambos’ Crown biz ultimately bought by AB’s Pomona branch. 

Recall, Calif law protects disappointed sellers who do not get deal or dollars they sought when supplier found to unreasonably withhold approval of deal.  Indeed, Crown got stung by this law in earlier case.  But in this case, Classic was disappointed buyer, who argued Crown had interfered with its potential gains down the road by unreasonably withholding approval of the 2010 deal.  It argued more than that as well, but case turned on legal issue of what is and is not “an independently wrongful act.”  Key to decision was that the Calif law Classic primarily relied on “does not provide a basis for Crown’s denial of approval, even if unreasonable, to constitute an independently wrongful act.”  That may seem counterintuitive, but the judges insist that an unreasonable denial of approval by supplier is not necessarily “wrongful.”  Indeed, the law “can be read to permit a beer manufacturer to unreasonably deny approval for a transfer as long as the manufacturer compensates the disappointed seller for the compensatory damages lost.”  (Keep in mind, Crown argued all along that it did not act unreasonably, and there was no complaint from Haralambos about the deal done with Pomona.)  Net-net: “as long as the seller receives adequate compensation, either from a successor purchaser or the manufacturer itself, there is no violation of the statute,” the judges ruled. 

But the judges did not stop there.  They pointed to “sound policy reasons” for allowing even unreasonable denials.  If a supplier can’t disapprove a deal “for any reason, it would be forced, by its distributor’s choice of buyer, to enter into a new contract with the new distributor, even if it does not wish to do business with the new distributor.  [Judges’ emphasis]  This is problematic.”  Why?  Because manufactures “have the right to select with whom to do business” the judges wrote (citing another case) and Calif legislature, by limiting remedies to disappointed sellers only, was “protecting the beer manufacturers’ right to select” the distribs they want to do biz with. 

Judges also tossed two separate arguments from Classic.  One relied on the Feb 2010 letter from Calif AG that criticized some aspects of brewers’ contracts as “unlawful exercises of control” over distribs.  But judges ruled that even if Classic interpreted AG letter correctly, that “would provide no assistance” to it given the finding above.  Then too, Classic’s late-game attempt to charge “fraudulent concealment” by Crown going back to 2008 was found to be “insufficient.” 

Crown prexy Bill Hackett applauded the decision and said it “reinforces the well-established legal precedent that Crown Imports is in fact empowered to select with whom we do business and ratifies Crown Import’s long-held philosophy of choosing to partner with the best wholesaler alternative for us in any particular market.”   

The largest beer distributor Reyes Holdings is not exactly one to rest on its laurels and the largest soft drink co Coca Cola has commenced refranchising of its distribution network. And so this  big move announced this morn: Reyes Holdings has signed letter of intent with Coca Cola to distribute Coke products in huge swath of territory, which Coke calls “greater Chicago area”  reportedly  literally 10s of millions of cases.  This long contemplated combo, advocated yrs ago by then-Bear Stearns analyst Carlos LaBoy, will become a reality. Next step: “definitive agreement.”  Distribution deal not likely to begin until early next yr.  Reyes soft drink and beer operations will be separate.  Reyes Holdings is also huge foodservice provider.  Total 2013 revs were around $22 bil.  

03/03/2014

Correction

>Here is the correct link for the Dogfish drinking/driving message we wrote about in last issue.

Keep up with us between issues at our blog, and on Twitter: @BeerInsights, @CraftInsights and @ BevInsights

BrewHub ceo Tim Schoen eyed 40 potential sites for initial facility but Lakeland, Fla economic development folks "did the best job in really getting involved," Tim told the Ledger recently. "Any barrier in the way, boom, they addressed it," he added. Wide-ranging interview on project with Tim and head brewer Paul Farnsworth included plenty of other nuggets, like "the bottom line is you make more money selling craft beer," on all tiers, according to Tim. He predicts craft will represent "more than 20 percent of revenues in all of the beer industry" in a few years, so BrewHub will "reduce risk" of expanding production and "help sort out which ones are going to make it to the next level." The BrewHub team has their eyes on "the top 40 of below that are trying to shore up their own volume." Paul also insists that "you don't make the destination, you make the beer, you get a reputation, you become a cult and then you become a destination." When asked about "America's fascination with bitter IPAs," Paul said that's "not skillful brewing," but that there's "testosterone poisoning everywhere," from ever-larger serving sizes in some places to higher alcohol content elsewhere.

Craft love also doled out by Va legislature and Anaheim City Council recently. Va lawmakers passed a bill last week to endow farm breweries with same privileges as state farm wineries. Breweries looking to open in Anaheim, Calif will have an easier time of it now that city officials voted to eliminate need for brewers to get conditional use permits to build on nearly 90% of commercial or industrial zone properties.  
Founders Brewing will enter Oklahoma, Louisiana & Arkansas in Apr 2014, bringing its total distribution footprint to 30 states, co announced earlier today. In Okla Founders will partner with independent distrib, Quality Beverage, tho in La and Ark, co will partner with an array of AB distribs for most part: Buquet Distributing, Schilling Distributing, Mockler Distributing, Southern Eagle Sales & Service, Champagne Beverage and Southwest Beverage in La, and Premium Brands of NW Ark (MC), Coco Beverage, and Golden Eagle of Ark in Arkansas. The expansion fills out what co-founder & ceo Mike Stevens refers to as "South Central region" which so far only includes Tex (entered in 2013).  
Beer, wine and spirits importer Total Beverage Solution will expand its Belgian business by acquiring Vanberg & DeWulf, importer of some iconic Belgian brands (like Saison Dupont and Scaldis family) plus a few other boutique European offerings from Italy, France, Iceland and the UK. The acquisition expands TBS' current portfolio, including Belgian Affligem, familiar imports from Weihenstephan, Old Speckled Hen, Birra Moretti and Krusovice, plus US-made brands Shipyard (plus Sea Dog), Southampton and renewed/revamped Celis brands. Release cites a "ten-fold increase" in V&D volume across last decade. TBS and V&D will spend the year transitioning into new ownership.  
Detailed request for proposals (RFP) from Stone Brewing indicates brewer's big plans for potential East Coast facility. Brewer (with big distrib & retailer operations with 2013 revs over $135 mil plans to spend well over $20 mil for phase 1, to encompass over 120K bbls of production. That could "eventually scale to nearly 500,000," note from Pat Tiernan, Stone coo notes. Indeed, breakdown of capital investments expects to spend $20 mil alone on "production machinery," another $7 mil on the building and about $2 mil for other equipment requirements. The co expects revs from new location to "exceed $100 [mil] in year four and grow over time into hundreds of millions annually." Stone seeks a space with at least 130K sq ft "with room to expand" to as much as 220K sq ft. All current Stone operations in Calif total nearly 240K sq ft. Addendum to RFP indicates hope for another 35K sq ft for an "additional production operation." Within about 5 yrs, Stone expects to close in on 400 employees at East Coast facility, complete with its own Stone Gardens and Bistro restaurant (15-30K sq ft), Company Store and potential other operations. Proposals are expected to detail "known/available development incentives," which Pat wrote could receive "significant weighting," plus descriptions of water supply, nearby businesses, local demographics, quarries, climate and "native vegetation." Stone will be accepting proposals til March 15.

Greensboro, NC is one of early entries looking to be new Stone home. Indeed, folks with Greensboro's economic development orgs created a Facebook page to promote the city's bid to be the home of Stone Brewing's potential East Coast brewing facility/restaurant, according to the city's News & Record. City officials are counting on "our logistics," including "a lot of good highways," to lure Stone to the central-NC city about an hour east of populous Triangle area.  
Starting with 2014 stats, Brewers Assn will include significantly more volume than it will report for 2013's total craft volume and individual breweries later this Spring. Once again, BA board of directors voted to adopt changes to org's "foundational documents," including its defn of "craft brewer," mission statement, and core values/beliefs. Some changes pretty subtle, a matter of emphasis and/or showing more love to homebrewers. But big change is in defn of "craft brewer" that going forward "recognizes that adjunct brewing is traditional," and therefore "craft." Current defn bars brewers that use adjuncts (like corn) to "lighten" rather than "enhance" flavor." That defn excluded brewers "who had been in business for generations" as not "traditional" and not craft. But that "simply did not cohere for many members," BA chair Gary Fish explained in memo to members today. New language "removes subjective assessment" by BA about enhancing vs lightening and allows more room for innovation, wrote Gary. Net-net, a handful of generations-old regional brewers -- including Yuengling, Straub and Schell among 'em, confirms director Paul Gatza -- will fit BA defn for purposes of BA craft volume. That's a big deal because it adds over 3 mil bbls to total "craft," again starting with 2014 shipments, based on estimates of those brewers for this yr. Another new addition to the list will be Minhas in Wisc, tho its significant exports to Canada will not be included in the US total. New defn "draws together the independent small brewers with the craft brewers," as Paul told CBN.

At same time, defn "draws a firmer line on FMBs" (flavored malt bevs), Paul said, and clarifies a bit more who will be excluded. BA moved comments on FMBs to "traditional" part of defn (from "small"). BA still does not consider FMBs beer but will include FMBs in suppliers' total volume to consider whether it's truly a craft brewer. That means if, say, Mark Anthony or Phusion were to put out a craft beer, or buy small craft brewer, it would not make the cut, since defn sez brewer has to "have a majority of its total beverage alcohol volume in beers whose flavors derive from traditional or innovative brewing ingredients and their fermentation."

What about Pabst? Another part of defn sez production attributed "according to rules of alternate proprietorship" (AP). AP means the company "actually takes possession of part of the host brewery" making the beer, Paul points out, buys ingredients, pays the taxes and has its own "brewers notice." Pabst's contract brew relationship with MillerCoors doesn't fit that, as far as BA can determine, and so not likely to be categorized as craft brewer. Pabst could also get excluded as BA may simply conclude that it "matters where it is brewed," Paul added. And being made at MC, not a craft brewer, could make the difference. Still some tweaks to come perhaps on how to count, and make sure you don't double count, craft brewers who contract with other craft brewers to make their beers. Finally, a small US brewer bought by a foreign brewer that otherwise fits defn of craft under BA (think Boulevard-Moortgat) would qualify as craft for stats but brewer would not be voting member if ownership outside US.

Other tweaks:
  • Add a phrase to "small" part of defn that 6 mil bbls is "approximately 3% of annual US sales." Some may think of 6 mil bbls as pretty big, but it's a small % of a 200-mil-bbl industry, wrote Gary. The new "independent" plank uses phrase "beverage alcohol industry member" instead of current "alcoholic beverage industry member," which could be read as someone with a problem.


  • Remove the phrase about protecting "craft beers" from BA's purpose, since BA does not define craft beer. BA will now "promote and protect American craft brewers, their beers and the community of brewing enthusiasts."


  • Boost goal of 10 share of US biz by 2017 to 20 share by 2020 in mission statement. New tent puts newly defined BA share at (very) roughly 9 share based on our estimates for 2013. (We've upped our estimate of 2013 craft total to 15,950,000 bbls, by the way, from early estimate in Jan.)


  • Add word "innovative" to "core values and beliefs" to describe culture of craft brewers and move the notion of "fostering transparency" within BA up the list. That's to "recognize the cutting edge component of craft brewing," Gary explained, and to show recognition of importance of transparency. BA also now aims to defend industry with "unified voice," a challenge perhaps when you have over 2,700 folks on "cutting edge," and brewers ranging from nearly 3 mil bbls selling brands targeted directly at Budweiser to nano-brewers. Finally, BA will work to build a "collegial community of brewers" and specifically adds "homebrewers" to the community.
"Taken as a whole," Gary summed up, "these changes are about looking forward, about the BA of the future, making the association stronger and keeping staff focused on the vital work they do" for craft brewing community.  
Responsible drinking messages from the beer industry and other alcohol suppliers have often been criticized by public health advocates as contradictory, thinly-veiled ads that may include some form of anti-alcohol abuse messaging but also serve to promote buying (and implicitly, drinking) a specific brand. A recently-released video created by Dogfish Head, shot with founder Sam Calagione and actor-bud ex-roommate Ken Marino, subtly subverts the tradition of "drink responsibly" ads. The video's promotion of Dogfish Head isn't veiled at all, including text that asks viewers to "Try Dogfish Head's continually-hopped...IPAs!" Importantly, the one-minute PSA concludes with forceful message: "Never drink alcohol and drive."

In similar spots, large brewers have typically chosen messages that either discourage drunk driving or encourage designated drivers, based on Beer Institute's report detailing such efforts. The DFH PSA clearly falls into the latter category, supporting Sam's choice to take Ken's car keys since Sam had a water with lunch and Ken had a couple IPAs. But brewers have never before adopted a zero-tolerance message, something retailers would not support, even if that's implied by designating a driver. "Never" is an unnecessarily tough standard, in effect in very few countries in the world. Is it a standard that could be adopted (or should be) at brewery tasting rooms or brewpubs?

The video debuted shortly after an article penned by Brewers Assn board member, Brooklyn Brewery's Steve Hindy appeared in the latest issue of the Brewers Assn-published New Brewer. "Combating Underage Drinking" attempts to bolster support for beer-biz-funded Alcohol Beverage Medical Research Foundation (AMBRF), a worthwhile organization that doles out research grants to those studying alcoholic beverages. About 1% of AMBRF's $2.5 mil annual budget in 2013 was donated by the Brewers Assn, with an unknown additional portion from private donations from about 15 other craft brewers, but the vast majority donated by large brewers and importers.

It's time, Steve asserts, for more craft brewers to join large brewers in shouldering "some of the responsibility for alcohol abuse in our society." But this sentiment lies in stark contrast to some other elements present in the piece. Steve concludes that "the argument that alcohol abuse or underage individuals are unlikely to plunk down $10 for a six-pack of craft beer is a potent one and could establish craft beer as the real 'beverage of moderation.'" Steve suggests that "the heavier flavors" typical of craft brands keep drinkers from matching "the volume of the mainstream drinker," but he steers clear of noting that such flavors typically come along with higher (sometimes much higher) alcohol by volume levels. It's also worth noting that this "beverage of moderation" line has been used by the beer industry to support its federal tax advantage over wine and spirits (both taxed at higher rates due to higher alcohol contents). Indeed, Ed McBrien, sales prexy of MC, recently told just-drinks that his co "has a self-imposed 8% abv limit on its mainstream beers," as "'beer is the drink of moderation compared to wine and spirits.'" (We note that there are a handful of MC specialty brands in the Blue Moon and AC Golden portfolio that surpass this limit, tho these surely wouldn't constitute "mainstream brands" referenced by Ed.)

Steve's line-drawing between craft and mainstream brands and his assumption that a craft drinker may be "far less likely to end up in the E.R." seems to fall on the back of what's identified as an "item in the New York Times Sunday Magazine" from last Sep that dominates the page above the article's opening. Citing a "Johns Hopkins study," the magazine reprints a list of "the 5 Most Popular Alcoholic Drinks Among People in the ER with Alcohol-related Injuries," topped by Bud and rounded out by 2 other Bud brands and 2 malt liquors. The work was completed by folks from Johns Hopkins Bloomberg School of Public Health, specifically its Center for Alcohol Marketing and Youth (CAMY), led by some of the fiercest anti-alcohol pundits and scientists currently working.

But this "study" has been handily taken down by numerous media sources, including our sister publication Alcohol Issues INSIGHTS, as not representative of the general population (the single inner-city Baltimore hospital chosen skewed heavily toward low-income patients) and potentially unethical (researchers, after finding that most patients didn't want to talk to them, decided to don white lab coats, without telling the patients that they weren't in fact doctors at the hospital, to boost results; patients miraculously were more open to talking about their drinking habits). Other CAMY studies have been similarly flawed and duly criticized, and its basic premise - that exposure to ads/mktg leads teens to drink, binge drink and experience associated harms - is thoroughly belied by the fact that teen drinking rates have fallen sharply in the US while ad/mktg spend has increased signficantly. Do small brewers really wish to be seen as endorsing such flimsy rhetoric from one of the beer industry's biggest critics? Is alcohol policy really an arena where it behooves small brewers to continue to distance themselves from larger brethren?

Keep up with us between issues at our blog, and on Twitter: @BeerInsights, @CraftInsights and @ BevInsights

Latest on craft distilleries seeking equal treatment to craft brewers and vintners: NY Congressman Chris Gibson "proposes a (Federal Excise Tax) rate of $2.70 per proof gallon for the first 100,000 proof gallons of production, a significant reduction from the $13.50 full rate charged all producers of spirits," announced newly formed American Craft Distillers Association (ACDA). In notable contrast to separate beer excise tax proposals from BA and BI, distillers "proposal was developed with the help of DISCUS (Distilled Spirits Council) legal advisors and has been in the works for the last four years," by Legislative Working Party, a Committee of ACDA. Craft distillers have made extra push for change in legislature in recent mos, with announcement of DISCUS' newly appointed chairman of Small Distiller Membership plus 80 member advisory board spanning 30 states to focus on distilleries producing 100K gallons or less, Calif passing law to allow sampling, other states like Mont, Oreg, Indy, etc with proposals pending, and ACDA's "first annual national conference in Denver in March." Nationwide there are now over 400 craft distillers, up from just 92 in 2010, according to DISCUS ceo, Peter H Cressy. NY "has 45+ Farm (Craft) Distilleries statewide," noted ACDA.