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Beer distributors ask Supreme Court to review supermarket sales ruling

March 24, 2009


HARRISBURG – The Pennsylvania Malt Beverage Distributors Association (MBDA) is asking the Pennsylvania Supreme Court to review the Commonwealth Court’s decision to allow beer sales in supermarkets, calling the decision likely to herald “the most substantial change in the manner and venue of beer sales in Pennsylvania since passage of the Liquor Code 70 plus years ago.”  If the Commonwealth Court ruling is allowed to stand, it will begin an erosion of established law leading to “beer sales almost anywhere,” the head of the MBDA said.

“The sale of multiple six packs in grocery stores has never been the Pennsylvania model,” noted Dave Shipula, president of the Malt Beverage Distributors Association (MBDA) of Pennsylvania.  Instead, Pennsylvania has limited sales of alcohol in or by restaurants and taverns, beer distributors, hotels, private clubs and selected other venues (racetracks, casinos, sports venues).  “Wegmans alone has already requested or received licenses for 13 stores, and at least four other supermarket chains have applications pending,” Shipula said.  “Giant Eagle, Weis Markets,  and even Whole Foods have filed applications, and who knows what other big box stores may enter the beer market as well.  The PLCB and Commonwealth Court decision will allow all of those new entrants into the beer market.”

MBDA believes that the lower court has ignored the economic reality that demonstrates that the Wegmans’ supermarket, not its “restaurant,” is the real seller of the beer to its supermarket customers.

There is no automatic right of appeal from the Commonwealth Court decision.  Instead, the Supreme Court exercises discretion to decide whether to hear the case, generally relying on criteria such as the importance of the issues raised.  MBDA believes this is an appropriate case for the Supreme Court to decide to review.  If it does not do so, MBDA asserts in its request for Supreme Court intervention that the “Commonwealth Court’s decision, which was the first judicial decision on this subject, will become the final as well as the first word on the subject.”

“For more than 50 years, state law has been perfectly clear:  ‘the liquor business is unlawful, and its conduct is only lawful to the extent and manner permitted by statute,” Shipula said.  “That regulation set strict limits for beer distributors to include only one shop per owner, selling only by the case, and limiting non-beer products which can be sold.  But now, the PLCB and the Commonwealth Court have swept aside those limitations in favor of actively promoting beer in grocery stores and advertisements.  That’s the exact opposite of the stated purpose of the law, which ‘has always been to restrain the sale of liquor, not to promote it.’”

Now that the appeal has been filed by the MBDA, opponents have two weeks to respond.   The Supreme Court will likely decide whether to accept the appeal in three to six months.  If it accepts the case for review, a decision would likely be another 12 months or more away. 

Shipula noted, “We believe that the PLCB and Commonwealth Court ignored significant legal precedent and ignored real-life evidence that the grocery stores intend to integrate six packs of beer into their product lines, and that the Supreme Court will agree with us those are important legal issues.  This debate really isn’t about allowing customers to have a cold beer with their pizza at the in-store snack bar.  The intention of Wegmans and other supermarkets is to sell beer for takeout, not in-store consumption.  The restaurant designations are simply Trojan horses that exist for no other purpose than to serve as the pretense under which grocery stores will sell beer.”

 
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