Kimberly Selemba, left, and Alexandra Sacavage, right, of McNees Wallace & Nurick.

The groundhog says spring is just around the corner, and we are inching closer to the warm weather and cold drinks of summer. When temperatures rise, there is no better relief than an icy beverage. Some may already be familiar with the reimagining of the iconic slushie, a sugary staple sold at convenience stores, as an adult beverage that has become hugely popular in Pennsylvania. Perhaps you have seen or tried one of these spiked slushies at a winery or purchased one at a beer distributor. Consumers take for granted that there are intricate state regulations that govern the sale of these tasty treats, but in a control state like Pennsylvania, those individuals and businesses with liquor licenses must pay close attention to the rules. In this article, using commentary from the Pennsylvania Liquor Control Board's (PLCB) advisory notices and advisory opinions, we will examine different types of Pennsylvania liquor licensees and their ability to create, serve and sell alcoholic slushies.

Most wineries in Pennsylvania are licensed under the PLCB as "limited wineries." Under state law, a limited winery is a winery that produces less than 200,000 gallons per year of alcoholic ciders, wine or wine coolers. Limited wineries may sell food, wine and alcoholic ciders by the glass or bottle, as well as wine accessories. They may also sell malt or brewed beverages produced by a licensed brewery, liquor produced by limited distilleries and wines produced by other limited wineries for on-premises consumption. Only glasses of wine or cider produced by the winery itself may be removed from the licensed premises. Limited wineries are thus permitted to sell wine slushies made in-house for off-premises consumption. However, the winery must adhere to any local ordinances related to open containers of alcohol.

Most distilleries in Pennsylvania are licensed under the PLCB as "limited distilleries." Limited distilleries can manufacture and sell bottled liquor produced on the licensed premises to the PLCB, to licensees, and to the public. Similarly to limited wineries, limited distilleries may sell liquor by the glass or bottle for on- or off-premises consumption, and can sell malt or brewed beverages produced by a licensed brewery, wines produced by other limited wineries and liquor produced by other limited distilleries for on-premises consumption. Limited distilleries may not sell "wine" slushies—but can sell slushies made with liquor produced in-house for off-premises consumption. Limited distillers must also adhere to local open container laws.

Retail licensees such as restaurants are permitted to sell a variety of wine, beer and liquor for on-premises consumption. For off-premises consumption, restaurants may sell malt beverages subject to volume restrictions, but not wine or liquor. Therefore, restaurants can sell malt beverage slushies for off-premises consumption, but not wine slushies. However, restaurants who possess a wine expanded permit, or "WEP," may sell wine products for off-premises consumption. A WEP can be obtained by any restaurant licensee in Pennsylvania and permits the sale of wine, or wine-based drinks, for off-premises consumption. The sales of wine cannot exceed 3,000 milliliters in a single transaction similar to the 192-fluid ounce limitation for off-premises beer sales by a restaurant licensee. If a WEP holder must add ice or water to the slushie machine to freeze the wine to make wine slushies, it must be discarded daily at the end of the 11 p.m. WEP business day. WEP-holding restaurants can sell wine slushies by the glass for off-premises consumption, as long as they are in compliance with local laws.

Distributors and importing distributors are permitted to sell malt or brewed beverages. Malt or brewed beverages include alcoholic cider, fermented fruit beverages and mead. Distributors and importing distributors can sell malt or brewed beverages for off-premises consumption in refillable growlers. Growlers are defined as a refillable container of malt or brewed beverage that can be resealed. The Liquor Code expressly prohibits distributors and importing distributors from possessing, storing, selling or otherwise handling wine. In order for distributors and importing distributors to sell products provided by limited wineries, those products must meet the statutory requirements for mead, cider or fermented fruit beverage found in the Liquor Code. The products must be registered with the PLCB as beer and no longer marketed as a wine product. The distributors or importing distributors may not refer to those products as wine, wine cocktail or anything similar. Additionally, distributors and importing distributors cannot mix any substance, including ice, with the malt or brewed beverage being sold by the growler. This is why you won't find a "wine slushie" at your local beer distributor, but might walk out with a frozen drink nonetheless. The products must come from an original package, made in containers or kegs, to be able to serve in growlers. Distributors and importing distributors are not authorized to sell for on-premises consumption, so any drink in the growler, frozen or not, must not be consumed on site.

Although Pennsylvania liquor laws are often referred to as arcane and onerous, the agency in charge—the Pennsylvania Liquor Control Board—has shown itself to be accessible and helpful to licensees and the public. Pennsylvania's alcoholic beverage industry is filled with innovators and entrepreneurs, and it continues to grow because of new ideas and response to consumers. Collaboration between the industry, the agency and the General Assembly is essential where licensees wish to embark on a new endeavor. Boozy slushies to-go may not be what people were used to a generation ago, but Pennsylvania wineries, distilleries, restaurants and distributors are ready and able to provide them in 2020.

We hope that this brief summary will help Pennsylvania liquor licensees better understand the evolving Liquor Code and the PLCB's regulations as new alcoholic beverage products continue to emerge and fill the market to satisfy consumers' demands. Today, alcoholic slushies are all the rage; with creative and clever producers located throughout Pennsylvania, however, tomorrow's trendy alcoholic beverage is anybody's guess. The liquor license attorneys at McNees Wallace & Nurick stand ready to assist all licensees with any type of licensing or permitting need. Cheers!

Kimberly Selemba, of counsel at McNees Wallace & Nurick, practices in the litigation, food and beverage, injunction, transportation, distribution and logistics practice groups. She represents businesses and individuals in a wide variety of commercial and business disputes in state and federal courts, as well as in alternative dispute resolutions.

Alexandra Sacavage, of counsel at the firm, focuses her practice on litigation matters. Prior to joining the firm, she served as Legal Counsel to the Pennsylvania House of Representatives Democratic Caucus, Legal Counsel to the Pennsylvania Liquor Control Board and Enforcement Counsel to the Pennsylvania Gaming Control Board in Harrisburg.