New Illinois legislation allows bars and restaurants to sell cocktails to go, but for some reason, the act of drafting liquor legislation continues to be a hack-job. Do only glass containers work? What’s the work-around for brewpubs, tap rooms and distilling pubs?

The State of Illinois passed a bill expanding alcoholic beverage consumption options in its session last week. House Bill 2682 –  which has passed both branches of the state legislature and should be on its way to Governor Pritzker soon, allows those alcohol sellers holding a state “retailer” license (this new legislation uses the term “retailer licensee” but probably meant to use “retailer’s” as that’s the actual defined term used in the Liquor Control Act, but they didn’t so that’s actually open to interpretation now) to sell “cocktails” or “mixed drinks” (these two things are defined as the same thing under this new bill, but to spice things up, the drafters probably wanted to be as confusing as possible by having multiple terms used to mean the same thing). 

This bill is awesome as it grants bars and restaurants a new way to provide something to people. This bill is also abhorrent in that it is poorly drafted and confuses many concepts unnecessarily.

Before we talk about the cool stuff and how bars and restaurants go about accomplishing it… some other funny things about the abhorrent drafting of this wonderful piece of legislation:

  • Apparently looking to conflate issues and not utilize consistent terms, the bill defines the concepts of both “original container” and “sealed container” but both appear to be the exact same thing with different words used to define the concepts of: (a) never used before; (b) sealed; and (c) tamper proof (we’ll get to this). Seriously, they’re the same, and as further evidence of not needing them both, (proving that they’re redundant) the new bill only finds use for the term they defined as “original container” once, and uses “sealed container” for the rest of the bill:

Original container” means, for the purposes of this Section only, a container that is filled, sealed, and secured by a retail licensee’s employee at the retail licensee’s location with a tamper-evident lid or cap.

Sealed container” means a rigid container that contains a mixed drink, is new, has never been used, has a secured lid or cap designed to prevent consumption without removal of the lid or cap, and is tamper-evident. “Sealed container” does not include a container with a lid with sipping holes or openings for straws or a container made of plastic, paper, or polystyrene foam.

(A better way to draft this would have been to remove Original Container and just use one term, “Sealed Container” – same goes for cocktail/mixed drink.)

  • From a functional perspective, that definition of “Sealed Container” is a bit troubling –  so, polystyrene and paper you probably get, but plastic rules out a lot of potential containers and increases costs dramatically as glass or metal appear to be the only options left.
  • Hilariously, the term “tamper-evident” is defined as… you guessed it, something sealed with “tamper-evident” covers … and not to be out-done by defining something as itself, the tautological provision goes on to toss a bone to bars restaurants by letting them know sealing with wax is totally cool again and is not just for 1492 themed restaurants or Edgar Allen Poe-ish bars – so brush off your signet rings and go ahead and have your vat of hot wax at the ready for “dippin’”:

Tamper-evident” means a lid or cap that has been sealed with tamper-evident covers, including, but not limited to, wax dip or heat shrink wrap.

(A better way to do this would have been to just let “tamper-evident” stand on its own without definition as it apparently is so clear you can use it in the definition of tamper-evident.)

  • For those of you keeping score, the terms “Sealed Container” and “Original Container” also include the term “tamper-evident” which, again, requires no definition, but in defining it, a problem arises as the term is used in a context forgetting its definition – the “original container” definition says the thing needs to be sealed with a “tamper-evident lid or cap” which is odd as the term tamper-evident is defined with reference to the lid or cap, so that’s redundant and nonsensical.
  • The bill allows bars or restaurants to sell either a “cocktail or mixed drink” (remember, they’re the SAME thing by definition) for off-premises consumption if certain requirements are met. One of these requirements is apparently that if the cocktail is placed in a vehicle, that it goes in the “trunk” but barring a trunk, in a rear compartment not readily accessible to the passenger area. But rather than qualify this with the phrase “if the delivery takes place by vehicle or curbside pick-up” the bill just left that out, so the text actually MANDATES that the cocktail go in the trunk or rear compartment (i.e., every cocktail must go in the trunk or rear compartment, vehicle or not – NO EXCEPTIONS – even if you are just buying it and walking home):

(b) A cocktail or mixed drink placed in a sealed container by a retail licensee at the retail licensee’s location may be transferred and sold for off-premises consumption if the following requirements are met:

   (1) the cocktail is transferred within the licensed premises, by a curbside pickup, or by delivery by an employee of the retail licensee who:

    (A) has been trained in accordance with Section 6-27.1 at the time of the sale;

    (B) is at least 21 years of age; and

    (C) upon delivery, verifies the age of the person to whom the cocktail is being delivered;

   (2) if the employee delivering the cocktail is not able to safely verify a person’s age or level of intoxication upon delivery, the employee shall cancel the sale of alcohol and return the product to the retail license holder;

   (3) the sealed container is placed in the trunk of the vehicle or if there is no trunk, in the vehicle’s rear compartment that is not readily accessible to the passenger area;

   (4) the sealed container shall be affixed with a label or tag that contains the following information:

    (A) the cocktail or mixed drink ingredients, type, and name of the alcohol;

    (B) the name, license number, and address of the retail licensee that filled the original container and sold the product;

    (C) the volume of the cocktail or mixed drink in the sealed container; and

    (D) the sealed container was filled less than 7 days before the date of sale.

  • One other thing about that employee verification provision in (b)(2) above… note the use of the disjunctive “or” for what they need to verify… so just one “OR” the other… you can either verify their age OR their level of intoxication, no need to do both. And what’s up with “safely”? Talk about the times mandating unnecessary language and people forgetting about it. (A better way to draft this would have been to have (b)(2) simply reference (b)(1) and say that if the employee cannot do those things, then they return the drink and cancel the sale and to leave the “safely” aspect to the portion that discusses compliance with gubernatorial directives.)
  • Finally, in that definition of “cocktail or mixed drink” what is the deal with a distinction between “brewed” and “fermented”? Can you think of an alcoholic ingredient that is brewed but not fermented? Here’s a hint: brewing doesn’t produce alcohol… fermentation does.

But enough of the fun… it could go on forever given the atrocious lack of attention to detail or consistency – an apparent intention of many recent pieces of liquor legislation is a wholesale rejection of the idea that the Illinois Liquor Control Act exists or that Illinois liquor attorneys working to draft legislation for their respective interests should bother to review it or call up the Illinois Liquor Control Commission for some help.

Here’s what bars and restaurants need to understand in order to get this going as a program for their operations:

  • Beer cocktails, wine cocktails, liquor cocktails – all good.
  • You cannot use third-party delivery services, it needs to be done with your employees if you’re having these things delivered rather than picked up. (Curbside sales are allowed in addition to having delivery or people coming into the bar/restaurant.)
  • The container needs to be rigid, tamper evident, cannot have a place for straws or holes for drinking. 
  • The container cannot be made of “plastic, paper, or polystyrene foam” (See definition of Sealed Container).
  • Delivery employees need BASSET.
  • The cocktails can be pre-mixed up to seven days in advance.
  • The container needs to be labeled with the following information:
    • Ingredients, including type and name of alcohol (presumably brand name? Or maybe type means distilled or non-distilled and name means vodka/rum/etc…. Best be safe and just go with Grey Goose Vodka or the like – good luck with Malort… “besk”?);
    • Name, license number, address of the licensee that filled the container and sold the product (no filling for others);
    • Volume? – net contents?
    • Date of fill (not less than 7 days) … (actually, this requirement in (b)(4)(D) is bad as it should be drafted as “date of fill” but rather is just drafted as though the label has to say that it was filled less than 7 days before it was sold… so “filled less than 7 days ago” as a statement placed on the label would arguably be correct rather than putting the date of fill on there… but date it was filled is likely what they were going for. Again, plain language statutes that people can understand and interpret should take precedence over legalese and would lead to a lot fewer mistakes and errant usage).
  • If an executive order mandates gloves and masks, a delivering employee must wear them.
  • Delivery employee must be 21.
  • Unless renewed, this thing expires in a year.
  • And, of course, you can wax-dip to your heart’s content you goth and steam-punk themed bars and restaurants.

Some other notes and what Brewpubs, Distilling Pubs and Tap Rooms might be able to do even though they cannot participate in this right in what I’m sure is the impact of lobbying efforts by wholesaler organizations, distilling pubs and brewpubs as well as tap-rooms cannot deliver under this bill, but nothing in this bill preempts or limits their rights to manufacture drinks that contain a plethora of ingredients nor in their abilities to sell original containers or growlers or crowlers of those beverages to go or, under current circumstances, to deliver under current regulatory allowance. So, for instance, a distilling pub creating a mixed drink and canning it creates an original container sealed manufactured drink in compliance with TTB and state regs which would be a “cocktail” that the distilling pub could deliver. Or a winery creating and selling a canned spritzer – provided it meets the definitions of original container and you’ve complied with TTB regs like formula approval. Nothing in this bill prevents a manufacturer from mixing and making original drinks to its heart’s content. Radler, anyone? (See, you’ve really got to think outside the non-polystyrene container more often.)

All-in-all this is a great step forward in a permissive consumption even if a tad inartfully drafted.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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