West Virginia Code of State Rules › Agency 176 - Alcohol Beverage Control Commission-Beer › Title 176 - LEGISLATIVE RULE ALCOHOL BEVERAGE CONTROL ADMINISTRATION COMMISSIONER - BEER › Series 176-01 - Nonintoxicating Beer Licensing and Operations Procedures › Section 176-1-2 - Definitions

Current through Register Vol. XLI, No. 28, July 12, 2024
As used in these rules and unless the context clearly
				  requires a different meaning, the following terms shall have the meaning
				  ascribed in this section.
2.1 The
				"ABCA" refers to the West Virginia Alcohol Beverage Control Administration or
				Commission.
2.2. "Alcoholic Liquor"
				or "Liquor" means alcohol, beer, fortified wine, and distilled spirits, and any
				liquid or solid capable of being used as a beverage, but shall not include wine
				with an alcohol content of 14% or less by volume, nonintoxicating beer or
				nonintoxicating beverages.
2.3.
				"Beer" means any beverage obtained by the fermentation of barley, malt, hops,
				or any other similar product or substitute and containing more alcohol than
				that of nonintoxicating beer, including nonintoxicating craft beer, and shall
				be included in the definition of "liquor" and "alcoholic liquor", as used in
				W.Va. Code §
									11-16-1
et seq
.:
Provided
, that in the Liquor Control Act, "beer" shall not be
				construed to include or embrace nonintoxicating beer or nonintoxicating craft
				beer.
2.4. "Brand" means a
				nonintoxicating beer product manufactured, brewed, mixed, concocted, blended,
				bottled, or otherwise produced, imported, or transhipped by a brewer or
				manufacturer, the labels of which have been registered and approved by the
				Commissioner that is being offered for sale or sold in West Virginia by a
				distributor who has been appointed in a valid franchise agreement or a valid
				amendment thereto.
2.5. "Brewer" or
				"Manufacturer" means any person, firm, association, partnership, or
				corporation, including agents and employees, who is manufacturing, brewing,
				mixing, concocting, blending, bottling, or otherwise producing or bottling, or
				importing, or transshipping from a foreign country nonintoxicating beer or
				nonintoxicating craft beer for sale at wholesale to any licensed distributor.
				Brewer or manufacturer may be used interchangeably. A brewer, its subsidiaries,
				parent entities, contracted entities, affiliated entities, or other related
				entities, may obtain only one brewer's license for its nonintoxicating beer or
				nonintoxicating craft beer. Upon review of a brewer's licensure, the
				Commissioner, may, but is not limited to, consider the percentage of ownership
				of subsidiaries, parent entities, contracted entities, affiliated entities, or
				other related entities. Any importer who obtains a brewer's license must submit
				to the Commissioner an appointment letter or other letter of authorization from
				a brand owner granting the importer the rights to the brand in West Virginia,
				and the importer will have to meet all requirements of a brewer.
2.6. "Brewer's License" means a license
				issued by the Commissioner to a brewer or manufacturer of nonintoxicating beer
				which authorizes that person to engage in activities of a brewer in this
				state.
2.7. "Brewer's Products"
				means all malt-based beverages produced or imported by a brewer and offered for
				sale in the state of West Virginia.
2.8. "Brewpub" means a portion of a resident
				brewer's place of manufacture of nonintoxicating beer or nonintoxicating craft
				beer, subject to federal and state regulations and guidelines, where a portion
				of the resident brewer's licensed premises is designated for retail sales of
				nonintoxicating beer or nonintoxicating craft beer manufactured or brewed by
				the resident brewer who owns the brewpub.
2.9. "Class A License" means the license
				issued by the Commissioner which authorizes a retailer to sell at retail
				nonintoxicating beer for consumption either on the premises where sold or off
				the premises: Provided, that for railroads operating in this state,
				nonintoxicating beer may be sold at retail only for consumption in the licensed
				dining, club, or buffet car where sold.
2.10. "Class A retail license" means a retail
				license permitting the retail sale of liquor at a freestanding liquor retail
				outlet licensed pursuant to chapter 60 of the Code.
2.11. "Class B License" means the license
				issued by the Commissioner which authorizes the retailer to sell
				nonintoxicating beer at retail in bottles, cans, or other sealed containers
				only, and only for consumption off the licensed premises: Provided, that a
				Class B license may only be issued to the proprietor or owner of a grocery
				store.
2.12. "Class B retail
				license" means a retail license permitting the retail sale of liquor at a mixed
				retail liquor outlet licensed pursuant to chapter 60 of the Code.
2.13. "Class S License" means the special
				license issued by the Commissioner for the retail sale of nonintoxicating beer
				at a fair or festival sponsored or endorsed by the municipality or county
				wherein the fair or festival is conducted, and at other special events approved
				by the Commissioner.
2.14. "Code"
				means the official Code of West Virginia, 1931, as amended.
2.15. "Commissioner or Alcohol Beverage
				Control Commissioner" means the Commissioner of the West Virginia Alcohol
				Beverage Control Administration (ABCA or Commission) or his or her
				delegate.
2.16. "Contract Brewing"
				means an arrangement documented by a written agreement between a brewer located
				in West Virginia and at least one other party who may or may not be located in
				West Virginia. Further, the party who is operating in West Virginia as the
				importer or owner of the brand shall obtain a brewer's license. The brewer who
				is actually brewing the nonintoxicating beer or nonintoxicating craft beer is
				responsible for meeting all federal requirements. If the other party or parties
				are operating in West Virginia, then only one of the parties may operate as the
				only licensed brewer or importer of the brand. This party or licensed brewer
				shall make the payment of all beer barrel taxes. If the parties are not
				operating in West Virginia, then the brewer located in West Virginia shall make
				all payments of beer_barrel taxes. A resident brewer who must brew at certain
				volumes from its place of manufacture is not permitted to contract brew its
				products or brew on contract for another brewer or resident brewer. In no event
				shall contract brewing be used as an arrangement to circumvent any franchise
				agreement or franchise distributor network.
2.17. "Delivery Day" means any day that a
				distributor is open for business.
2.18. "Distributor" means any person,
				including that person's agents or employees, jobbing or distributing
				nonintoxicating beer or nonintoxicating craft beer to licensed retailers at
				wholesale and whose warehouse and chief place of business is located within
				this state. A distributor may make arrangement to receive nonintoxicating beer
				or nonintoxicating craft beer from a brewer, located in the state, or a
				resident brewer to transport the nonintoxicating beer or nonintoxicating craft
				beer to the distributor's warehouse from the place of manufacture, prior to
				distributing the nonintoxicating beer or nonintoxicating craft beer at
				wholesale to licensed retailers. For the purposes of a "distributor" only, the
				term "person" means and includes an individual firm, trust, partnership,
				limited partnership, limited liability company, association, or corporation.
				Any trust licensed as a distributor or any trust that is an owner of a
				distributor licensee, and the trustee or other persons in active control of the
				activities of the trust relating to the distributor license, is liable for acts
				of the trust or its beneficiaries relating to the distributor license that are
				unlawful acts or violations of W.Va. Code §
									11-16-1
et seq
.,
				notwithstanding the liability of trustees in W.Va. Code §
									44D-10-1001
et
				seq
.
2.19. "Distributor
				License" means a license issued by the Commissioner to a distributor which
				authorizes the distributor to engage in the commercial activities described in
				section 2.18 above, except that sub-distributing is an impermissible
				practice.
2.20. "Food" and "Food
				Products" means and includes edible foodstuffs intended for human consumption
				and items commonly thought of as food, including by way of illustration and not
				by limitation, cereals and cereal products, meat and meat products, fish and
				fish products, poultry and poultry products, fresh and salt water animal
				products, eggs and egg products, vegetables and vegetable products, fruit and
				fruit products, flour and flour products, sugar and sugar products, stevia and
				stevia products, milk and milk products, coca and coca products, coffee and
				coffee substitutes, tea, herbs, spices, salt and salt substitutes, condiments,
				soft drinks, soft drink mixes and syrups, tenderizers, food coloring, bottled
				drinking water, sugar substitutes, oleo, margarine, shortening, gelatins,
				baking and cooking ingredients, mushrooms, spreads, relishes, desserts,
				flavorings, edible seeds, nuts, and berries: Provided, that the terms "food"
				and "food for meals" does not include medicines, vitamins and dietary
				supplements whether in liquid, powdered, granular, tablet, capsule, lozenge, or
				pill form; spirituous, malt or vinous liquors or beer; ice; tobacco or tobacco
				products; candy and confections; chewing gum; cake letters; breath mints; or
				food sold through a vending machine.
2.21. "Franchise Agreement" means the written
				agreement between a brewer and a distributor that is identical as to terms and
				conditions between the brewer and all its distributors, which agreement has
				been approved by the Commissioner. The franchise agreement binds the parties so
				that a distributor, appointed by a brewer, may distribute all of the brewer's
				nonintoxicating beer products, brands or family of brands imported and offered
				for sale in West Virginia, including, but not limited to, existing brands, line
				extensions and new brands all in the brewer's assigned territory for the
				distributor. All brands and line extensions being imported or offered for sale
				in West Virginia must be listed by the brewer in the franchise agreement or a
				written amendment to the franchise agreement. A franchise agreement may be
				amended by mutual written agreement of the parties as approved by the
				Commissioner with identical terms and conditions for a brewer and all of its
				distributors. Any approved amendment to the franchise agreement becomes a part
				of the franchise agreement. A brewer and a distributor may mutually agree in
				writing to cancel a franchise agreement. A distributor terminated by a brewer
				in accordance with the Code and rules no longer has a valid franchise
				agreement. If a brewer has reached an agreement to cancel a distributor or has
				terminated a distributor, then a brewer may appoint a successor distributor who
				accedes to all the rights of the cancelled or terminated distributor.
2.22. "Franchise Distributor Network" means
				the distributors who have entered into a binding written franchise agreement,
				identical as to terms and conditions, to distribute nonintoxicating beer
				products, brands, and line extensions in an assigned territory for a brewer. A
				brewer may only have one franchise distributor network. Provided, That a brewer
				that has acquired the manufacturing, bottling or other production rights for
				the sale of nonintoxicating beer at wholesale from a selling brewer as
				specified in W. Va. Code §
									11-16-21(a)(2)
				shall continue to maintain and be bound by the selling brewer's separate
				franchise distributor's network for any of its existing brands, line
				extensions, and new brands.
2.23.
				"Grocery Store" means any retail establishment commonly known as a grocery
				store or delicatessen, where at least $500.00 worth of food or food products
				are sold as average monthly sales for consumption off premises and $500.00 food
				or food products are held as monthly inventory, and includes a separate and
				segregated portion of any other retail store which is dedicated solely to the
				sale of food, food products, and food supplies for the table for consumption
				off the premises.
2.24. "Growler"
				means a container or jug that is made of glass (also a 32 ounce glass container
				which is commonly referred to as a howler), ceramic, metal (also a canned type
				of metal growler referred to as a crowler) or other material approved by the
				Commissioner, that may be no larger than 128 fluid ounces in size and must be
				capable of being securely sealed. The growler is utilized by an authorized
				licensee for purposes of off-premises sales only of nonintoxicating beer or
				nonintoxicating craft beer for personal consumption not on a licensed premises,
				and not for resale. A securely sealed growler is not an open container under
				state and local law. A growler with a broken seal is an open container under
				state and local law unless it is located in an area of the motor vehicle
				physically separated from the passenger compartment. The secure sealing of a
				growler requires the use of a tamper-evident seal, shrink wrap, or other
				material, as approved by the Commissioner, placed on or over the growler's
				opening. The seal, shrink wrap, or other material must be clearly marked with
				the date of the secure sealing by the authorized licensee who is selling the
				growler. Additional requirements are set forth in W. Va. Code §
									60-8-1
et seq
.,
				for wine growlers, and in W. Va. Code §
									60-7-1
et seq
.,
				and 175 CSR 2, for craft cocktail growlers.
2.25. "Licensed Retailer" means any person,
				including the person's agents and employees selling, servicing, or otherwise
				dispensing nonintoxicating beer and all products regulated by W. Va. Code
				§
									11-16-1
et seq
.,
				including, but not limited to, any malt beverages or malt coolers, at the
				retailer's established and licensed place of business or premises.
2.26. "Licensee" means any person licensed in
				accordance with W. Va. Code §
									11-16-1
et seq
.
				to brew, manufacture, distribute, or sell, at wholesale or retail, any
				nonintoxicating beer.
2.27. "Line
				Extension" means any nonintoxicating beer product that is an extension of brand
				or family of brands that is labeled, branded, advertised, marketed, promoted,
				or offered for sale with the intent or purpose of being manufactured, imported,
				associated, contracted, affiliated, or otherwise related to a brewer's existing
				brand through the use of a brewer, its subsidiaries, parent entities,
				contracted entities, affiliated entities, or other related entities. In
				determining whether a nonintoxicating beer product is a line extension, the
				Commissioner may consider, but is not limited to, the following factors: name
				or partial name; trade name or partial trade name; logos; copyrights;
				trademarks or trade design; product codes; and advertising promotion or
				pricing.
2.28. "Manager" means an
				individual who is the applicant's or licensee's on-premises employee, member,
				partner, shareholder, director, or officer who meets the licensure requirements
				of W. Va. §
									11-16-1
et seq
.
				and this rule who actively manages, conducts, and carries on the day-to-day
				operations of the applicant or licensee with full and apparent authority or
				actual authority to act on behalf of the applicant or licensee. Such duties
				include but are not limited to: coordinating staffing; reviewing and approving
				payroll; ordering and paying for inventory, such as nonintoxicating beer, wine,
				and liquor, as applicable; and managing security staff, security systems,
				video, and other security equipment; and any further acts or actions involved
				in managing the affairs of the business, on behalf of owners, partners,
				members, shareholders, officers, or directors.
2.29. "Non-alcoholic beer" means natural
				cereal malt beverages or products of the brewing industry commonly referred to
				as a malt beverage, cereal beverage, or near beer and all other mixtures and
				preparations produced by the brewing industry, including malt coolers, frozen
				beer based products, and nonintoxicating craft beers, all with no caffeine
				infusion or any additives masking or altering the alcohol effect, containing
				less than 0.5% alcohol by volume. Non-alcoholic beer products brewed by a
				brewer or resident brewer or distributed by a distributor must prior to any
				sale in West Virginia first submit, on a form provided by the Commissioner, the
				brand or brands for verification of the non-alcoholic claims and status, and
				the approval of the Commissioner for sale in West Virginia. Non-alcoholic beer
				must meet federal labeling requirements for 0.00% beer or for beer less than
				0.5%. All labeling shall clearly convey the non-alcoholic nature of the
				beer.
2.30. "Nonintoxicating Beer
				or Nonintoxicating Craft Beer" means all natural cereal malt beverages or
				products of the brewing industry commonly referred to as beer, lager beer, ale,
				IRC beer and all other mixtures and preparations produced by the brewing
				industry, including malt coolers, frozen beer based products, and
				nonintoxicating craft beers, all with no caffeine infusion or any additives
				masking or altering the alcohol effect containing at least 0.5% alcohol by
				volume, but not more than 11.9% of alcohol by weight, or 15% by volume,
				whichever is greater. The word "liquor" as used in W. Va. Code §
									60-1-1
et seq.
,
				does not include or embrace nonintoxicating beer nor any of the beverages,
				products, mixtures, or preparations included within this definition. For the
				purposes of this definition "infusion" means and includes to artificially add,
				input, or otherwise deliver caffeine or any other additive, not a true
				flavoring or coloring, that would mask or alter the alcohol effect in
				nonintoxicating beer. Furthermore, low or no alcohol beers which are less than
				0.5% alcohol by volume manufactured or brewed by a brewer or resident brewer
				must provide the ABCA with a certified lab analysis that the low or no alcohol
				beer is below 0.5% alcohol by volume prior to the low or no alcohol beer being
				sold in West Virginia, such beer must list the exact alcohol percentage on the
				product's label.
2.31.
				"Nonintoxicating beer sampling day" means any days and hours of the week where
				Class A retail licensees (See section 2.10 above) only may sell nonintoxicating
				beer pursuant to W. Va. Code §
									11-16-11a and W. Va. Code §
									11-16-18 (a)(1),
				and is approved, in writing, by the Commissioner to conduct a nonintoxicating
				beer sampling event.
2.32.
				"Original Container" means the container used by the resident brewer or brewer
				at the place of manufacturing, bottling or otherwise producing nonintoxicating
				beer for sale at wholesale, such original container may only include bottles,
				cans, pouches, sealed growlers sealed by the resident brewer or brewer, other
				containers sealed and manufactured by the brewer or resident brewer and as
				approved by the Commissioner, and kegs.
2.33. "Person" means and includes an
				individual, firm, partnership, limited partnership, limited liability company,
				association, or corporation. A trust is not included in the definition of
				"person", however an appointed trustee or authorized trust representative that
				meets licensure requirements may be listed on a retail license application
				provided that the Commissioner is satisfied that the true ownership is
				reflected on the retail license application. A distributor license has separate
				trust requirements.
2.34. "Private
				Club" means any corporation or unincorporated association licensed in
				accordance with W. Va. Code §
									60-7-1
et seq
.
				which:
2.34.a. belongs to or is affiliated
				with a nationally recognized fraternal or veteran's organization, which:
2.34.a.1. is operated exclusively for the
				benefit of its members;
2.34.a.2.
				pays no part of its income to its shareholders or individual members;
2.34.a.3. owns or leases a building or other
				premises;
2.34.a.4. admits only
				duly elected or approved dues paying members in good standing of the
				corporation or association and their guests while in the company of a member,
				and does not admit the general public; and,
2.34.a.5. maintains in the building or on the
				premises a suitable kitchen and dining facility with related equipment for
				serving food to members and their guests.