U.S. District Judge Marsha Pechman placed another stay on her earlier ruling in the closely-watched Coscto decision she handed down in April. Her earlier ruling essentially dismantled Washington State’s three-tier system without regard to the consequences, including many of the protections that ensure a level playing field for businesses of varying sizes. Costco originally brought the suit because, if successful, they would reap enormous benefit, as would other big box retailers. The losers would include small retailers, small brewers and ultimately consumers once the landscape of the state’s alcohol business has been greatly altered after the changes are implemented. Costco and the business press have continued to spin the story by claiming it will lower prices of beer to the consumer, but that’s simply propaganda as I’ve pointed out before and again in response to a thoughtful comment.

The recent stay gives state lawmakers until May 1, 2007 to change Washington’s beer and wine laws through new legislation. Since her initial ruling effectively makes the current laws invalid, an entirely new system to control the relationships between manufacuters, distributors (if any) and retailers must be created. Whether that can be accomplished in under eight months in a way that’s fair to all concerned, including consumers, remains to be seen. But it seems a Herculean task and fated to fail, at least in my opinion. There are just too many competeing interests for almost any legislature to come up with a workable solution. It seems more likely that if any legislation is passed, it will favor the big box stores and big breweries but will at least appear to balance critics’ concerns, while not actually doing so. That’s been the general pattern of legislation in our business-dominated times. Big business contributes to political campaigns and politicians enact legeslation favorable to their benefactors. And as usual, you and I wll be left holding the empty non-returnable bottle.

Well they’ve gone ahead and done it, legislated away malt liquor for several neighborhoods in Seattle, Washington, effective November 1. The state liquor board yesterday banned “29 drink brands” including, of course, malt liquor. Now I’m not a fan of malt liquor (except perhaps for Dogfish Head’s wacky craft malt liquor, but even that I wouldn’t drink under very many circumstances) but the idea that restricting the sale of certain inexpensive, but high alcohol drinks will in any way cure homelessness is ludicrous.

Board member Roger Hoen “acknowledged some businesses would lose money because of the rules. But, in life, there’s a number of restrictions and inconveniences that we have to live with.” Actually, Roger, you won’t be inconvenienced one little bit so by “we,” you actually mean “they.” You should say what you mean or at least know what you’re saying. I think the “restrictions and inconveniences” you speak of will be borne, as usual, by the people with the least voice in our society, the invisible people without homes or a say in their lives.

But that’s depressing. Luckily, Merritt Long, chairman of the board, ends things on an “upbeat note.” “Besides,” he says, “customers can still choose from more than 4,000 other beer products allowed in Washington” Good point, Merritt, albeit cluelessly condescending, I’m sure we’ll see the homeless choosing a nice bottle of Westmalle Triple or a local barleywine. Way to show your compassion.

I got the following sunny comment to my analysis of the Costco decision from SeattleBeerGuy:

Interesting analysis but I’m not sure I agree with the conclsuions. I think the change has the potential to earn wider distribution for many smaller breweries as they can now sell directly. The price issue does not seem terribly pressing as people who drink beer are generally willing to pay slightly more for a better beer anyway–ever plunk down $3 for 12oz? More than twice what you would pay for a macro-lager.

So yes, the big boxes will outcompete smaller stores on cases of Budweiser or Killian’s but that should only encourage smaller breweries to reach sweetheart deals with local, smaller stores. I see a rosy horizon over which small, local groceries sell beer from small, local breweries. Not a bad thing.

I was just going to post a comment responding to his thoughtful, if overly optimistic, take on the judge’s ruling but the more I thought about, the more I realized it required a more lengthy answer. This is necessary, I think, because it is the opinion that many people will likely hold. I want to be clear that I have no disrespect for this opinion but having been directly involved in the beer business at the retail level, I have a unique perspective on how things generally work from brewery to distributor to retailer. It is for this reason I hold a different opinion than SeattleBeerGuy and is why I can not be as sanguine and positive about the future.

So let’s look at SeattleBeerGuy’s assertions:

1. “The change has the potential to earn wider distribution for many smaller breweries as they can now sell directly.” That sounds good on paper but probably won’t work for a couple of reasons. First, that would require each small brewery to have a larger sales force to sell directly to retailers, including trucks to deliver to them, and merchandisers for support. Most small berweries simply won’t be able to afford to add the staff required. You could argue that one of the current brewery employees or the owner could do it, but given the number of locations that would now have to be sold to directly, that doesn’t seem remotely feasible. Second, buyers would be too busy to meet with a different salesman for each individual brewery. They simply don’t have that kind of time. That’s why having just a few distributors representing the majority of the brands makes sense, especially for the smaller players. Buyers only have to meet with a few people to meet all their needs. So that means distributors will still be the most efficient method for both small breweries and retailers. As it stands now, distributors sell to smaller retailers and larger chain stores are called on by what are called “chain reps.” or “chain salesmen” who give presentations to the larger chains. These more than likely already include “special deals” not made available to smaller retailers but now that it will be legal it will undoubtedly get worse. That’s not likely to change, except that the law will now give even more of an advantage to the big box stores. So buying direct will really only benefit these large stores who have trucks to pick up product and store it in their own warehouses. Those retailers will have an enormous advantage at every stage of the distribution path. Will wider distribution be possible for the smaller breweries? There may be a few medium or middle tier retailers looking for a way to distinguish themselves but I can’t see how that would create enough increased business to make much of a difference. At best, it seems like it might be something of a wash if that happens to balance the loss of business that I believe will eventually be caused by this decision.

2. “The price issue does not seem terribly pressing as people who drink beer are generally willing to pay slightly more for a better beer anyway–ever plunk down $3 for 12oz? More than twice what you would pay for a macro-lager.” This assertion ignores one inescapable fact, which is the people “willing to pay slightly more for a better beer” make up only 3.5% nationally of the total beer market. The other 96.5% are the ones buying crap for the most part. That number is probably higher in Seattle and it’s probably higher where I live in the Bay Area, as well. But even if it’s as high as 10% that still leaves 90% of consumers who aren’t willing to spend more. If you drink good beer you tend to live in a bubble — at least I know I do — where almost everyone you know also drinks decent beer. But the vast majority of consumers don’t drink craft beer. It’s weird to think about, but for every ten people you pass on the street, only one of them shares your love of good beer in a best case scenario. Depending where you live, it may be much, much worse. That’s why in a naming doublespeak that would make Orwell proud, Budwieser, Coors and Miller Genuine Draft are called “premium beers” and beers like Busch, Natural Light and Miller High Life are called “sub premium.” Imports like Heineken and Corona are called “premium imports.” Craft beer is called “specialty beer” which gives you some idea of how small a portion of total beer sales they represent. Most of the beer sales data is collected by two companies, Nielsen and IRI Scan Data, and both use these broad catagories to describe the beers they’re tracking. Both, as I understand it, only collect sales data from groceries, convenience stores, chain liquor stores and the like and so they’re not reflective of the overall market since they discount one-off liquor stores and other small retailers. But these are the figures used by most beer buyers and is does show some trends and has some value in that context since the sales data can be compared over time. And one of things they do show is how much price does matter to the 96.5% of consumers that buy beer not categorized as “specialty beer.” One of the reasons given for Anheuser-Busch’s recent drop in income is that they’ve been engaging in price wars, meaning they’ve lowered their price to increase sales at the expense of profitability. This has been going on in some fashion for at least five or six years, possibly more. And it’s kept domestic beer prices artificially low. So I think it is actually fairly pressing since the vast majority of beer drinkers do shop on price. What all this legal wrangling will result in, I believe is an even wider gap between domestic beer prices and craft beer. This gap makes it harder to convince the 90-96.5% to trade up to better beer. Forget all the arguments you can think of, some people are just stubbornly going to shop on price no matter what. At least that’s the way I see it.

3. “So yes, the big boxes will outcompete smaller stores on cases of Budweiser or Killian’s but that should only encourage smaller breweries to reach sweetheart deals with local, smaller stores. I see a rosy horizon over which small, local groceries sell beer from small, local breweries. Not a bad thing.” The problem with this, as I’ve said before, is that small breweries are not really in any position to make “sweetheart deals” with smaller retailers. I can’t tell you how many meetings I’ve had over the years when I was a beer buyer with small breweries telling me how they simply couldn’t match the big breweries on post-offs (posted discounts that are scheduled throughout the year), scans or scanbacks (another way to offer discounts that are tied to actual sales during a given period of time) or other incentives for hitting sales goals such as contests for stores, etc. And that’s because their business is tied to hitting some formula of volume of sales to the brewery’s capacity in order to be profitable. The amount of leeway they have for advertising or other sales incentives is miniscule compared to the larger breweries who have exponentially larger volume. Only the regional breweries, such as Anchor, Sierra Nevada or New Belgium have enough volume to do anything meaningful on a regular basis. And actually, Sierra Nevada did not discount their beer very often for many, many years. It really wasn’t until they’d built the new facility and introduced twelve-packs that they began doing a regular year-round schedule of discounts. The other problem is that many smaller retailers are also not going to be beating down their local brewery’s doors looking for them, either. There may be a few retailers who actually care about craft beer but in my experience each community only has a couple and usually only one or two that really specializes in having an outstanding beer selection. In Seattle I only know of Bottleworks. There may be another, but I don’t know of it. There’s probably a couple of stores where there’s an employee who’s really into good beer who’s made a difference at one store and who has a small following of customers. And that’s for a city of a little more than half a million people. In the nine counties that comprise the greater Bay Area there are just under seven million people and no dedicated beer store like Bottleworks, despite a vibrant beer culture. My point is that the number of places truly dedicated to the craft beer culture is fantastically small. And that fact makes it very difficult for me to see a “rosy horizon” when an enormous advantage is handed to a handful of big businesses whose sole goal — like all corporations — is domination of their market. I hope I’m wrong and it’s “not a bad thing” as SeattleBeerGuy believes, but my spidey sense is tingling and I can’t see any good coming from this long term, especially once this decision is used as a precedent and spread by Costco throughout the rest of the states.