Less than a week after Real Ale Brewing successfully resolved a trademark dispute, another beer battle being fought in Texas courts has also had a happy ending — at least for now.
Crowlers, according to the Texas judge who heard the case between Cuvee Coffee Bar and the Texas Alcoholic Beverage Commission, aren’t getting canned after all.
Although the TABC alleged that retailers like Cuvee Coffee using crowlers “constituted canning,” which only breweries and brewpubs are legally able to do, Texas Administrative Law Judge John Beeler found that “the evidence failed to prove any of the allegations, and therefore (he) recommends that no action be taken against” Cuvee Coffee or its founder, Mike McKim, according to court documents.
The ruling, made Nov. 17, means the TABC can’t prohibit bars and restaurants from filling crowlers — 32 oz. aluminum growlers that look like supersized cans — for customers.
McKim, who decided to go to court against the TABC after the agency confiscated his crowler machine last year, celebrated the victory with supporters last night but worried this morning that getting his crowler machine back won’t be so easy.
“In theory, what it means is that the TABC’s accusations, all the charges they brought against us, the judge doesn’t agree with at all,” McKim said in a phone interview. “It means that crowlers are no different than growlers. The downside is that the TABC’s lawyer got in touch with mine (‘craft beer lawyer’ Angel Tomasino) and said they are going to file exceptions to this.”
The TABC’s public information officer, Chris Porter, said the agency is examining the judge’s ruling and evaluating whether to file an exception.
If that’s what TABC decides to do, it has a deadline of Dec. 2 to protest the judge’s ruling, and even if the judge again strikes down the agency’s argument, McKim said he doesn’t know when he’s going to actually be able to sell crowlers again. He’s hopeful, however, that the return of the Texas legislature in January means updated codes and laws protecting retailers’ use of crowlers aren’t far away.
“We’ve already started the lobbying process,” he said. “We won’t let them drag their feet. They took us to court, they lost, and they should give us the crowlers back and let all bars serve them.”
He has taken on crowlers as his cause for more than principle. Crowlers have proven to be more lucrative than growlers at selling beer to go, at least at his business; as a result of Cuvee Coffee not having a crowler machine, McKim said that the bar has a lost a substantial amount of revenue. On East Sixth Street, the bar sold 1,000 crowlers in six months but only 16 growler fills in the 14 months since TABC took away the crowler machine. That’s a pretty decisive clue, he said, that customers just don’t use growlers as much.
Growlers — glass, stainless steel or ceramic containers many businesses use to sell beer for off-site consumption — come in 32 and 64 oz. sizes, and they’re more bulky and unwieldy than the large cans termed as crowlers. Crowlers are also seen as favorable for reasons that cans are: because they prevent light from spoiling the beer, keep the beer fresher for a longer period of time and can be recycled, though they are one-use unlike growlers. (Oskar Blues, which now has a location in Austin, first invented the crowler.)
Despite McKim’s apprehension over what TABC might decide to do in light of the ruling, he’s optimistic overall about the Texas beer industry after other court battles have yielded victories for the people in it.
“With the Live Oak, Peticolas and Revolver win and pending litigation with Deep Ellum, we’re seeing a shift in the attitude of the courts,” he said. “I think it’s great for all of these outdated, non-specific alcohol codes that are left open for 10 different people to interpret 10 different ways. I think it’s great for the craft beer industry in Texas.”