Harvey beer trends


Dear Client:

NBWA chief economist Lester Jones and Fintech's Jim Kallies presented some interesting insights and indexes at NBWA last week.

But it wasn't based on Nielsen or IRI. These numbers came via Fintech's electronic financial transaction data. Fintech covers about 25% of industry volumes, involving both off and on premise STRs. "That's why I like to say it's a sample of the industry, not a census," or universal read, said Lester.

Among the most interesting reads from this session: According to this data set, beer case volumes actually came out ahead around the time of Hurricane/Tropical Storm Harvey, based on the geographies in Texas they measured. Over a three-week period surrounding the event, measured areas saw, in all, 5,000 more cases gained in up markets compared to the down market.

According to insights based on the Fintech data, the Houston market was at about 47,000 cases on August 20, before the storm hit. Cases dropped 32% in that market on August 27 due to Harvey. Cases dropped even more in two smaller affected markets, Corpus Christi (down 42%) and Beaumont (down 95%), on that date.

But those in other major Texas markets -- Dallas, San Antonio, Austin and Waco -- spurred double-digit case gains during the storm event, like the 30% case volume surge seen in Dallas on August 27, for example. Presumably, some of this came from displaced Harvey victims. Makes sense: you fall on hard times, you tend to have a beer or two.

By September 3, even Houston cases were back up to pre-Harvey levels. In all, Fintech shows a 5,000-case gain from Hurricane Harvey.


Last week the Texas Alcoholic Beverage Commission won an appellate court case affirming its right to refuse a producer, Mark Anthony, the ability to use a retailer's trade name and trademarks on its products.

An earlier case had ruled in favor of Mark Anthony,who believed such provisions regarding licensing violated the First Amendment. TABC appealed that decision.

The case involves a line of malt beverages manufactured by Mark Anthony Brewing, to be marketed under the "T.G.I. Friday's" brand, per brewer's licensing deal with the namesake restaurant chain.

EXPOSITION. Out-of-state supplier Mark Anthony Brewing had submitted its TGIF package label for TABC approval. TABC rejected it based on "TABC rules that prohibit, stated generally, use of the name, trade name, and trademark of Texas retailer permittees on the labels of malt-based beverage." I.E., no cross-tier confusion.

So Mark Anthony filed suit to determine the constitutionality of the applicable statutory provision, claiming First Amendment defense. (It claimed the label prohibition "restrains commercial speech in violation of the First Amendment," and that the First Amendment argument trumps any "thing of value" violation arguments.)

The District Court agreed with Mark Anthony.

But last week, the Texas Court of Appeals, Third District, disagreed. They agreed with TABC's claim in their appeal, that Mark Anthony's "speech" here is "unlawful conduct" in this context and thus not entitled to First Amendment protection. "Mark Anthony's labels are not protected commercial speech under the First Amendment because they relate to activity that is unlawful under Texas's tied-house statutes," per Court documents.

So Friday, the Appeals Court reversed the District Court's judgment and "rendered judgment that Mark Anthony Brewing take nothing on its claims."

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