# Are Growlers Legal?



## bluedoors (13/8/12)

I had an interesting discussion the other day around the legality of Growlers. Obviously they are a growing trend, and it is great for craft brewers and lovers of craft beer alike, but most places i've seen dispense don't do so in a legal way.

If the gowlers were filled and in the fridge, they would fall under 'pre-packaged goods', and as long as the labeling was correct it would be fine

http://www.measurement.gov.au/TradeMeasure...kagedGoods.aspx

But gowlers are a re-fill concept, so don't fall under the category. If we look at the guidelines for the sale of alcohol

http://www.measurement.gov.au/trademeasure...es/alcohol.aspx

"The sale of beer, stout and ale dispensed from taps must be made by a volume measurement in metric units. Beer, ale and stout must be sold in approved, batch-tested glassware or batch-tested acrylic containers marked in millilitres (mL), or litres (L)"

So this would also be fine if they were accurately filled, eg by having scales under the growler and filling by weight (but then you would need to know the density of each craft beer), or if growlers were approved glassware and there was a way of accurately measuring the fill volume.

My Growler (from Hop Dog) is marked in US units in the glass (although does say 1.89L on the label), and has no fill line (although one could assume it is the top). So this wouldn't qualify.

I'd be interested in others thoughts? Are Growlers legal? Is any growler seller working with the authorities to find a solution?


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## sean_0 (13/8/12)

I recently had a conversation with a reasonably well known microbrewer who said that they are a bit dodgy from a legal standpoint. I was asking if his brewery was planning to do growlers and he said he wasn't happy with the legal situation and wouldn't be doing them unless it became clearer. As far as he was concerned it was only legal for him to sell 50L kegs and pre-packaged bottles.


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## Bats (13/8/12)

I say, let the Breweries and distributors worry about the Legal aspects of selling Growlers.

What you don't know, can't hurt you.


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## bigfridge (13/8/12)

The Tax department is apparently getting interested in the excise being evaded ie beer leaves brewery in 50 litre keg at a lower rate of excise and repackaged into a container holding less than 48 litres which should paay excise at a higher rate.

But the main question - is the filling of a growler re-packaging or simply serving the beer just like filling a schooner ?

The ATO says that repackaging is the same a smanufacturing alcohol - see http://www.ato.gov.au/businesses/content.a...nt/00308494.htm


A number of breweries have approached us about buying new 30 litre kegs so that the higher duty rate is paid by them rather than the bottleshop having to apply for a manufacturers license and handle all the paperwork involved.


Dave


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## gravey (13/8/12)

At Lobethal Bierhaus they are pre-packaged and you simply exchange the bottle - you do not re-fill yourself.


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## NewtownClown (13/8/12)

As you correctly point out, Growlers don't fall under the "pre-packaged" guidelines. Why then do you feel it falls under the "dispensing" guidelines? If Growlers were to be consumed on the premises, those regulations would apply. Growlers are "re-packed", so perhaps need a category of their own or be covered by "pre-packaged".

"Re-packaging" alcohol is covered in terms of excise. I find this to be a greater concern than being a few ml over or under.

From the ATO
The repackaging of bulk beer (that is, the filling of the growlers from a keg) is considered to be manufacture for the purposes of excise.
Beer packaged in containers exceeding 48 litres attracts a lower rate of excise duty than beer in containers not exceeding 48 litres. Some entities were taking advantage of this rate differential by obtaining duty paid bulk beer and repackaging it into containers less than 48 litres. In order to ensure the appropriate rate is paid, section 77FC of the Excise Act provides that if beer in containers exceeding 48 litres is duty paid and subsequently decanted into containers not exceeding 48 litres, the repackaging is taken to be the manufacture of beer. Repackaging beer would not normally constitute 'manufacture' within the ordinary meaning of that term.
Where excise duty has been paid on beer in a container exceeding 48 litres and the beer is subsequently decanted into smaller containers (such as growlers), duty must be paid on the decanted beer at the higher rate applicable to beer packaged in containers not exceeding 48 litres. This second amount of duty would be payable by the entity undertaking the repackaging (such as the hotel, tavern or retailer), and the initial duty paid on the beer is not refundable.
As entities engaged in repackaging duty paid beer in containers exceeding 48 litres into smaller containers are undertaking the manufacture of excisable goods, they are also required under the Excise Act to hold an excise manufacturer licence.

The ATO double dipping. Duty paid on original 48+ litre keg then again on the 2 litre container with no refund

Only way around it is to buy 30 litre kegs where the higher rate has already been applied


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## NewtownClown (13/8/12)

gravey said:


> you do not re-fill yourself.



Now THAT would be fun...


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## Phoney (13/8/12)

On a side note, why do they separate "beer, stout and ale"?


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## NewtownClown (13/8/12)

phoneyhuh said:


> On a side note, why do they separate "beer, stout and ale"?




Because if they just called it beer, smartarses would claim it doesn't apply to the "Ales" or "Stouts" they dispense.


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## NewtownClown (13/8/12)

http://www.smh.com.au/executive-style/top-...0617-20hmb.html

another view on the application of the excise


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## tricache (13/8/12)

northside novice said:


> wouldnt lager and ale cover all beer styles ? i thought stout was an ale? and beer covered everything that is beer :blink: ? except wine and spirits as they are wine and spirits ? pretty simple i thought ?
> 
> i must of missed the email about ales and stouts not being beer <_<



:lol: my brain hurts now :blink:


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## Nick JD (13/8/12)

Growlers? Legal? 

Half the population has one, so ... yes?


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## NewtownClown (13/8/12)

Nick JD said:


> Growlers? Legal?
> 
> Half the population has one


And the other half wants one..


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## tricache (13/8/12)

NewtownClown said:


> And the other half wants one..



Totally agree!! I am that other half and everytime Growlers come up in discussion on AHB I jump straight on eBay :lol:


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## bluedoors (13/8/12)

I hadn't considered the added pain of excise as well. So seems there are two areas: The ATO and their excise, and Trade Measurement for the legal sale of. I assume the latter would only get involved if their were complaints etc. My local butcher sells marinated shoulders of lamb for $18 rather than by weight (not legal in terms of Trade Measurement), but no one seems to bother.

As to re-packaging. i'm not sure what this comes under in terms of Trade Measurement. I guess it would be like selling loose nuts, and would need to be weight or measure.
There use to be (might still be) a store in the QVB in Sydney that would sell Olive Oils, and flavoured alcohols. This would probably have the same issue?


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## NewtownClown (13/8/12)

tricache said:


> Totally agree!! I am that other half and everytime Growlers come up in discussion on AHB I jump straight on eBay :lol:



Growler with a tap...
http://www.ebay.com.au/itm/ws/eBayISAPI.dl...c#ht_947wt_1327


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## yum beer (13/8/12)

What about the problem of being able to take opened alcohol containers off the premises.
You buy the growler to 'take away' but it is not sealed and as such should be consumed on the premises.
F.. knows how the alcohol free zones would impact, again its an open container in a area you cant have them.
Thank christ the cops are too busy chasing drugo's and thieves.


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## tricache (13/8/12)

NewtownClown said:


> Growler with a tap...
> http://www.ebay.com.au/itm/ws/eBayISAPI.dl...c#ht_947wt_1327



Nooooo!!! :lol:


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## Jay Cee (13/8/12)

Good points were raised in regards to being a packaged product, and therefore attracting a higher exise. However if growlers are considered a dispensed food (such as being pured a schooner in the pub) then how can you be allowed to leave the premises with it ? 

In regards to legal fill requirements, I thought you could only take the growler specific to the establishment back for refills. Can anyone comment on this if they have taken otehr pubs' growlers to be recharged? 

The cops might be too busy to chase this up, but one day the ATO and the Liqour Licencing love this sort of shit. Maybe we should all stop talking about it, and enjoy our moonshine growler bottles in private. :icon_drunk:


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## NewtownClown (13/8/12)

Jay Cee said:


> Good points were raised in regards to being a packaged product, and therefore attracting a higher exise. However if growlers are considered a dispensed food (such as being pured a schooner in the pub) then how can you be allowed to leave the premises with it ?
> 
> In regards to legal fill requirements, I thought you could only take the growler specific to the establishment back for refills. Can anyone comment on this if they have taken otehr pubs' growlers to be recharged?
> 
> The cops might be too busy to chase this up, but one day the ATO and the Liqour Licencing love this sort of shit. Maybe we should all stop talking about it, and enjoy our moonshine growler bottles in private. :icon_drunk:



Bit of a Growler "shortage", at least in Sydney, at the moment. I am sure brewers don't care about the origin of the container, just happy to see their product selling. I know one outlet actually used "crowd sourcing" to fund the purchase of new growlers due to a shortage

The ATO are already on to it and have published fact sheets specifically. The question lies with compliance, how many venues (bottle shop, bar etc) are actually charging the extra excise if repackaging from 50 litre kegs (or, as the ATO calls it, REMANUFACTURING)

This is ALL Little Johnny Howard's fault...
He promised beer over the bar would not be more expensive under GST. In order to meet that promise, he needed to **** around with the excise.
Must have been a "core" promise


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## jayahhdee (13/8/12)

Jay Cee said:


> However if growlers are considered a dispensed food (such as being pured a schooner in the pub) then how can you be allowed to leave the premises with it ?



That would vary from state to state with legislation and license types. I have a feeling that might be the reason why the ATO hasn't jumped on this with all its might just yet.

Technically speaking in Victoria, if you are drinking at a pub with holds a General Liquor License, they only thing stopping you from ordering a pint of draught and walking out the door and up the street with it to your house is the theft of the pint glass.


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## Jay Cee (13/8/12)

NewtownClown said:


> Bit of a Growler "shortage", at least in Sydney, at the moment.




Your new local craft palace (henry's) does growlers. Platinum bottle-o are renovating their dingy old shop soon, and will be doing growlers. Im pretty sure the local Taphouse does them, and maybe even Murrays @ Manly as well.


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## NewtownClown (13/8/12)

Jay Cee said:


> Your new local craft palace (henry's) does growlers. Platinum bottle-o are renovating their dingy old shop soon, and will be doing growlers. Im pretty sure the local Taphouse does them, and maybe even Murrays @ Manly as well.




I have 2 Henrys Growlers on the kitchen bench right now. I know they are available. I was pointing out that they are so popular that the actual bottles are in short supply. A few weeks back Henrys was asking people to return the empties...


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## Dave70 (13/8/12)

Sticky issues like this are part of the reason lawyers drive 5 - Series BMW's and afford premium cocaine.


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## stux (13/8/12)

tricache said:


> :lol: my brain hurts now :blink:



Historically (as in Medieval England), Beer was made with Hops, and Ale was made without hops (and in fact, without a boil!), and this was written in some of the statutes I believe

Stout was made industrially.

Could be that its a historical vestige of our legal/excise system being inherited from england


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## bluedoors (13/8/12)

So that shop in QVB was Flaschengeist, and they are ok because they sell liquor, which is different to Beer.

Didn't realise there was such a shortage of growler bottle. I'll have to guard mine more carefully


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## Lakey (13/8/12)

I dont care if it is illegal, growlers are a great thing for the beer scene, and who doesnt love being able to take home a couple of litres of beer that you may not be able to buy in a six pack. Growl on! :beerbang:


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## Edak (13/8/12)

Bats said:


> ...
> What you don't know, can't hurt you.



Legally I didn't read this thread.....


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## Jay Cee (13/8/12)

NewtownClown said:


> I have 2 Henrys Growlers on the kitchen bench right now. I know they are available. I was pointing out that they are so popular that the actual bottles are in short supply. A few weeks back Henrys was asking people to return the empties...



Ah gotcha. Next time I'll rock up with an erlenmeyer and a cork :icon_cheers:


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## Thirsty Boy (14/8/12)

jayahhdee said:


> That would vary from state to state with legislation and license types. I have a feeling that might be the reason why the ATO hasn't jumped on this with all its might just yet.
> 
> Technically speaking in Victoria, if you are drinking at a pub with holds a General Liquor License, they only thing stopping you from ordering a pint of draught and walking out the door and up the street with it to your house is the theft of the pint glass.



interesting - if so, then in Victoria you could make the argument that a growler is not in fact repackaging, but the sale of an "open" container of alcohol and therefore not something that requires extra excise. If you are willing to let the punter wander off with the actual container (or if they supply their own) is a separate issue.

Dont screw on the lid..... problem solved. ???


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## mkj (14/8/12)

The excise on a 30L keg is the same as bottled, so it's OK in that regard? Going by a [post="906996"]post a few months back[/post] from a Perth retailer (I think).


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## NewtownClown (14/8/12)

mkj said:


> The excise on a 30L keg is the same as bottled, so it's OK in that regard? Going by a [post="906996"]post a few months back[/post] from a Perth retailer (I think).




That was pointed out in post #6 of this thread...

"The ATO double dipping. Duty paid on original 48+ litre keg then again on the 2 litre container with no refund

Only way around it is to buy 30 litre kegs where the higher rate has already been applied"


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## jayahhdee (14/8/12)

I think it will be some time yet before the ATO make an official ruling on this because there are so many loop holes in liquor licensing legislation and because it varies from state to state unlike tax legislation which is standard across the country.

FYI I work in the liquor licensing industry in Victoria.


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## NewtownClown (14/8/12)

jayahhdee said:


> I think it will be some time yet before the ATO make an official ruling on this because there are so many loop holes in liquor licensing legislation and because it varies from state to state unlike tax legislation which is standard across the country.
> 
> FYI I work in the liquor licensing industry in Victoria.




No.
Excise is Federal and the ATO already has laws regarding growlers. Excise has little to do with liquor licensing...
ATO


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## bluedoors (14/8/12)

For those saying they couldn't find Growlers. These whilst expensive look great

http://www.hydroflask.com/products/64-oz-w...el-growler.html


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## punkin (15/8/12)

Stephenkentucky gifted me one of these the other day.

Not as pretty as glass, but insulated..

http://www.ikea.com/au/en/catalog/products/30163463/

I like it. B)


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## lukiep8 (15/8/12)

Growlers are not illegal. It took us a solid year of making sure everything was done correctly, and growlers were filled correctly, before we started doing it at the shop.

Growlers fall under packaged beer sales, so you can only fill from 30L kegs. From speaking with the ATO, it completely 100% illegal to fill from 50L kegs unless you have a manufacturers license, and pay excise on each fill you produce, which is not available to liquor stores. Ramifications of this is that it then becomes tax fraud, and not only are the liquor stores liable, but so are importers/distributors/breweries who are aware of their 50L kegs being dispensed into growlers.

30L kegs are taxed at the exact same rate as all other packaged beer. It is only 50L kegs that are different. The ATO is happy with growlers, as long as no one is filling from 50L kegs (which some places are).

Liquor licensing has no issues with growlers, as long as the local council of the store in question is happy with them. Personally, the only issue we came across was cleaning and swapping of bottles, so we cannot fill anything we do not clean at the shop, which means we have to clean all bottles. We were also required to get a food license and are subject to random inspections, as such, to maintain cleanliness. This is different for all councils. Some councils have not allowed re-fillable bottles, or have not really cared about how growlers are filled. A lot of new places don't realise the amount of work that is involved in setting up a growler station, let alone talking to their local council, talking to the ATO, and talking to liquor licensing, which has lead to some bad practices.

If anyone has any questions, then I am more then happy to answer them. I am advocate of the right thing being done in terms of growlers, as they are being watched with a close eye. I personally don't want to see one bad egg ruining it for everyone else.

EDIT:

"Growler Shortage"

There is no shortage of actual bottles in the world. It is just expensive and takes a long time to get bottles into Australia. There is no manufacture of them in Australia. We just received another shipment of 500 growlers, which cost us a considerable amount of money, as you pay for the bottles as well as duty once they land in the country. This is not something every liquor store can do without a second thought. It took nearly 3 months for the bottles to arrive. We currently have 1000 Squealer bottles on order, which likely won't arrive until mid october, which were ordered 2-3 weeks ago.


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## altstart (15/8/12)

yum beer said:


> What about the problem of being able to take opened alcohol containers off the premises.
> You buy the growler to 'take away' but it is not sealed and as such should be consumed on the premises.
> F.. knows how the alcohol free zones would impact, again its an open container in a area you cant have them.
> Thank christ the cops are too busy chasing drugo's and thieves.



The major concern and primary focus of law enforcement is not chasing drugo's and thieves but speed and traffic offences for which a hefty fine can be levied. Drugo's and thieves cost the states enormous sums of money in incarcaration costs.

Cheers Altstart


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## NewtownClown (15/8/12)

LUKIE said:


> Growlers are not illegal. It took us a solid year of making sure everything was done correctly, and growlers were filled correctly, before we started doing it at the shop.




pretty much a summary of all the contributions in this thread to date.

I didn't state there was a worldwide shortage, nor did anyone else.
In Sydney, there certainly was a shortage due to the popularity, eg: a local brewer had ONE growler left a few weeks ago and asked customers to return theirs (for a credit). Another outlet resorted to crowd sourcing (basically pre-paying) for a shipment (perhaps it was Squealers).

When you say "illegal" to package from 50 L kegs without a "manufacturer's license", you mean a Manufacturer's _EXCISE_ Licence. According to the ATO, under the Excise Act, this CAN can be held by a pub or a retailer, easily, for the purpose of repackaging.
So it is quite legal to repackage from 50 L kegs if the correct licence is obtained.

I use to work in Australian Taxation Management and Accounting and can tell you that one cannot rely on advice from "speaking to the ATO". In fact, the ATO cannot be held liable for incorrect information from a consultant.

Section 77FC of the Excise Act covers this. It states that repackaging from 48 L or larger into packages less than 48 L is taken to be the manufacture of beer. Repackaging beer would not normally constitute 'manufacture' within the ordinary meaning of that term.

The problem with that, as I pointed out, is the double applied excise. Once for 50 L package at the brewery, then again at the point of repackaging for the 2 L package. Double dipping!

However, that can be avoided if one obtains an excise storage licence in order to acquire the bulk beer under bond (that is, without the duty being paid on the beer). The duty is then payable at the higher packaged rate when the growlers are filled.


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## Clutch (15/8/12)

Yeah, pretty much confirms what I overheard the other day.
Filling from 50l kegs is a no no.

Not that it's stopped some of the bars up here.


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## JDW81 (15/8/12)

NewtownClown said:


> Beer packaged in containers exceeding 48 litres attracts a lower rate of excise duty than beer in containers not exceeding 48 litres.



Simple solution, make growlers 48L


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## breakbeer (15/8/12)

Jay Cee said:


> Maybe we should all stop talking about it, and enjoy our moonshine growler bottles in private. :icon_drunk:




this


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## donburke (15/8/12)

NewtownClown said:


> Section 77FC of the Excise Act covers this. It states that repackaging from 48 L or larger into packages less than 48 L is taken to be the manufacture of beer. Repackaging beer would not normally constitute 'manufacture' within the ordinary meaning of that term.
> 
> The problem with that, as I pointed out, is the double applied excise. Once for 50 L package at the brewery, then again at the point of repackaging for the 2 L package. Double dipping!



i'd call it being spitroasted by the government, copping one in the mouth whilst being rear ended, without any lube

typical of our tax laws, like commonwealth taxing of employee benfits with fbt and the state contemporaneously taxing them with payroll tax

or what about taxing a tax ... like charging stamp duty on the gst portion of a contract

a practical illustration of some of the many reasons that lead people to have philosophical differences with taxes


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