Despite a Denver snow storm, another successful Craft Brewers Conference recently concluded. As is typical at these conferences, old friendships were renewed and new ones were formed. Brewers and distributors visited, learn about new industry topics, and viewed the exhibits. The CBC continues to dwarf all other beer industry conventions with more than double the attendance at the NBWA. Expect the CBC’s attendance growth to continue at next year’s event in San Antonio.
One of the more interesting speeches at this year’s CBC was made by Marc Sorini, in his annual appraisal of governmental and legislative affairs. After providing an update on the history of franchise laws, Marc noted that some states are finally loosening their franchise laws. As he noted, this move could signal the beginning of states’ siding with the craft industry. According to Marc, “Wholesalers have massively consolidated and now have more than enough clout to protect themselves both legislatively and legally.” Florida, Georgia, North Carolina, Maryland, Massachusetts, and Maine all are currently undergoing some form of franchise reform.
Each state has a different sales volume maximum which is required in order for the wholesaler’s supplier to have the right to terminate “at will” without the necessity of paying to terminate the contract. The status of each state’s bill varies. Some bills will not make it out of committee and some bills will not get to a vote, while others will.
Certainly most in the industry will celebrate this news; but should they? On the surface it appears that these laws are advantageous for the small suppliers, enabling such suppliers the ability to terminate and move to a different supplier without financial compensation; and thereby providing improved ability to execute on the suppliers’ products.
Suppliers, however, need to first step back before concluding that these changes in franchise laws are advantageous. Consider that there are two, perhaps three wholesalers in any major market. A supplier’s choices are very limited. If any supplier believer that a wholesaler would take on a new vendor without franchise protection, they should reconsider.
The reality is that without protection, wholesalers will rewrite their distributor contracts. It is possible that many wholesalers could ask both parties to wave all provisions of their respective state beer franchise protection laws and only use the contract as the legal document. Rest assured these contracts will have provisions on terminations and multiples. The language will be very wholesaler specific, with little regard to the rights of the supplier. In fact, most of these contracts will become evergreen. Suppliers will not have any choice but to go along or simply pack up and leave. Since there are only two or three wholesalers, the supplier is right back to where they started. Wholesalers may lose their franchise protection but they will not compromise on contracts.
Divorce is probably as painful as death.