How Breweries Can Survive the Aluminum Shortage

Bowditch & Dewey
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As if the craft brewing industry had not endured enough during the COVID-19 pandemic, many breweries may now be faced with yet another obstacle: a national aluminum can shortage.  During a time when in-person visits to breweries are limited, many breweries have relied on can sales to ensure that customers can continue to imbibe while riding out the storm at home.  Although a can shortage may threaten that lifeline, breweries are not without options.  Easing some restrictions on a familiar form of packaging would likely further alleviate that burden.

The aluminum container industry has observed that the recent can shortage was caused by an “unprecedented surge in demand.”  Of course, can scarcity is not a problem that is unique to breweries.  The limited supply is only exacerbated by the high demand presented by soft drink companies, many of whom had begun to transition away from plastic bottles before the pandemic due to environmental concerns.

The short supply has even forced some large breweries to unexpectedly change course, as Molson Coors announced that it would cut back on the production of some brands to conserve its can stock.  But small craft breweries are likely not as well-positioned to adjust to these changes.  With can deliveries being delayed 9 to 10 weeks longer than usual, many have begun to amass a stockpile to ensure that their businesses can survive through the winter, noting that building an inventory has become “mission critical.”

Faced with this threat, breweries may resort to some creative solutions.  In particular, a renewed emphasis on a tried and true form of packaging—growlers—may offer the relief that breweries need during this potential crisis.  However, slight changes to the controlling rules may help breweries to fully leverage that option.

In 2017, the Massachusetts Alcoholic Beverages Control Commission issued an Advisory regarding the refilling of growlers, which clarified that Farmer-Breweries and Pub-Breweries may refill growlers not provided by the brewery if three conditions are satisfied: (1) the growler is entirely blank, devoid of any labeling of another brewery; (2) the growler is empty of all alcoholic beverages; and (3) the growler is filled with the brewery’s own beer.

Although the ABCC’s guidance is helpful, the restriction on refilling growlers that reflect another brewery’s branding prevents this rule from reaching its full potential.  Many customers have their own personal inventories of branded growlers at home, which are theoretically ready to be filled onsite at a brewery of their choice.  Allowing breweries to fill the growlers that customers already have, regardless of the logo reflected on the glass, would not only ease the burdens imposed by the can shortage, it would also save customers the unnecessary expense of buying a new growler every time they visit a different brewery.  Blank growlers certainly exist, but anecdotal evidence suggests that they are not the norm, since many breweries avail themselves of the branding opportunities that newly-purchased growlers represent.  The legislature has recently demonstrated a concerted effort to nurture the craft brewing industry during the pandemic, and this minor adjustment to the rules surrounding growler refills would likely go a long way toward ensuring that these essential businesses can continue to thrive.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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