Beverage Cold Storage Clauses: Protect the Product—and the Proof

Beverage cold storage clauses should do more than name a temperature. They should assign responsibility, preserve evidence and explain who pays when the cold chain fails. Nic’s Beverages learned how expensive the missing pieces can become.

In Nic’s Beverages, LLC v. Waco Bottling LLC, a Texas appellate court affirmed no-evidence summary judgment on a supplier’s contract and negligence claims involving two shipments totaling 80,000 pounds of CBD-infused cold brew. The court identified delivery-trailer ambient readings of 69°F and 80°F—not proven bottle temperatures. Its central observation: “NB presents no evidence that the product itself ever exceeded the required temperature or suffered heat shock.” The missing link also concerned responsibility: “we cannot find evidence that links a specific action or inaction by Waco Bottling to cause the damages alleged.” Suspicions about an empty refrigeration fuel tank did not close that gap. 

What Nic’s could have contracted for—and documented

The opening brief’s attachments reveal trouble before production. Emails distinguish storage during production from storage of finished inventory awaiting shipment. An invoice states: “Client will provide reefer onsite to hold finished product.” A delivery instruction specifies 35°F–38°F. Those instructions could not replace a verified temperature history. 

Nic’s needed more than a tighter temperature range. It needed an integrated production agreement covering cooling, storage capacity, fueling, carrier responsibilities, loading and receiving checks, data access and rejection remedies.

Many co-packing agreement require temperature-and-hold-time logs, retained samples and no invoicing for specified substandard products. Beverage manufacturing agreements also address storage conditions, audits, joint rejection inspections and disposal costs. Borrow that structure, not unrelated products’ temperature settings.

At rejection, preserve representative samples, download monitoring data and obtain receiver testimony identifying the measurement method. Engage a qualified expert to connect temperature history with lost safety, quality or shelf life and distinguish production, storage and transit causes. Those steps could have supplied evidence Nic’s lacked; they do not guarantee recovery.

Sample cold storage clause for a co-packing agreement

Consider this supplier-side starting point:

Co-packer shall comply with Schedule A’s separate product-temperature, ambient-temperature, cooling-time and permitted-excursion limits throughout production, storage and transportation through delivery at [destination], including subcontracted operations. Co-packer shall maintain adequate refrigeration capacity, fuel and backup arrangements; continuously record ambient temperatures with calibrated loggers; and measure and record representative internal liquid temperatures at each custody transfer under Schedule A’s sampling protocol.

Co-packer shall retain lot-linked raw data and calibration, fueling, testing and custody records for three years or longer if law requires, preserve sealed samples through shelf life, permit Brand audits and supply requested records within 24 hours. Co-packer shall immediately quarantine affected lots upon any prohibited excursion or monitoring failure, notify Brand within one hour and obtain Brand’s written release before shipment or disposal, except when law requires immediate action.

An excursion exceeding Schedule A’s rejection limits, or failure to supply required contemporaneous records within five business days after notice, constitutes independent nonconformity. Brand may reject affected lots without proving spoilage. Co-packer shall, at Brand’s election, replace rejected lots or reimburse their documented ingredient, packaging and processing costs, plus reasonable testing, freight, storage and disposal costs, without duplicate recovery. The general liability cap and consequential-damages exclusion shall not limit these payments.

Complete Schedule A with product-specific validation, sensor locations, logging intervals and acceptable exposure durations. The independent remedy targets the proof problem: negotiate payment for defined nonconformity rather than depend entirely on proving heat damage.

Wholesalers: promise reasonable cold handling, not a thermometer reading

Distributors should never accept a blanket contractual guarantee of a specific storage temperature. One filed BrewDog agreement illustrates the exposure: a 38°F ceiling covering storage and delivery. Negotiate commercially reasonable efforts to keep designated products cold instead. Preserve mandatory food-safety duties, however; no contract excuses unsafe handling – if you haven’t (even for beer, wine and spirits) you should familiarize yourself with federal and your state’s good manufacturing and warehousing practices as the failure to abide by them could be a breach you do not know about until it is asserted against you. Decline products requiring controls your operation cannot provide.

For Products designated for refrigeration, Distributor shall use commercially reasonable efforts to keep Products cold during storage and delivery under its control, exercising reasonable care through commercially reasonable cold-handling procedures. Distributor does not guarantee a particular numerical temperature or uninterrupted refrigeration. Ordinary loading, unloading and delivery intervals shall not alone constitute breach. Supplier manuals and shipping instructions shall not expand these obligations without a signed amendment. Supplier must establish failure to exercise the agreed care and resulting Product damage to recover contractual damages. Nothing in this provision limits mandatory food-safety obligations.

Suppliers should purchase measurable cold-chain performance when their products need it. Wholesalers should avoid guaranteeing performance their facilities and delivery routes cannot reliably deliver. Both should insist on records that separate a refrigeration problem from speculation.

In short: Beverage suppliers and wholesalers should negotiate cold-storage obligations with both the loading dock and a potential dispute in mind. Suppliers should pair product-specific co-packing requirements with monitoring, access to records and meaningful rejection remedies, while distributors should resist temperature guarantees that exceed their operational control. Both sides should settle who checks the product, who preserves the evidence and who pays when the agreed standard fails—before the first shipment leaves the dock. The goal goes beyond keeping beverages cold: draft an agreement that assigns responsibility clearly and leaves neither side trying to prove its case from a truckload of assumptions.