Craft breweries say lockdown order is biased

California craft breweries have sued Gov. Gavin Newsom, alleging the state's reopening directives discriminated against them.

Led by the California Craft Brewers Association, the plaintiffs argued in the Dec. 17 filing the reopening orders favor wineries over breweries, pointing to a requirement that they have to serve meals to operate tasting rooms.

"When it is time to begin the reopening of businesses in 2021, we need to ensure that a single industry is not arbitrarily divided based on unfounded assumptions," Tom McCormick, executive director of the association, said in a statement. "We want to ensure that the craft brewing industry has the same privileges and the same pathway as other alcohol beverage manufacturers to reopen, reemploy and rebuild next year."

Breweries and wineries are both currently closed in most counties under Newsom's latest orders, which took effect when the state said a region's intensive care unit capacity fell below 15%.

Plaintiffs seek an injunction prohibiting California from reverting back to the colored tier reopening system that allows breweries to fully reopen only if they serve meals. They alleged violations of the equal protection of the laws and due process clauses of the 14th Amendment.

"Requiring beer manufacturers to serve food as a prerequisite to operating their tasting room is arbitrary, irrational and unconstitutional," wrote plaintiffs' attorney Craig A. Taggart. California Craft Brewers Association v. Newsom, 20-cv-02372 (C.D. Cal., filed Dec. 17, 2020).

Newsom owns stock in the PlumpJack Group, which includes a Napa Valley winery. His ownership interest is in a blind trust.

The state attorney general's office did not immediately respond to requests for comment.

The California Department of Public Health responded that it "determined that mixing between greater numbers of people from differing households was more likely at breweries" since wineries often have more limited seating. The dine-in meal requirement, it said, is to discourage close contact.

Plaintiffs claimed the explanation is not grounded in science. They cited multiple beer manufacturers that share tasting room spaces with wine manufacturers.

"The circumstances surrounding the events are exactly the same, but defendants decreed winners and losers in the challenged CDPH guidance without any rationale based in legitimate public health considerations," Taggart wrote.

Breweries also argued that the meal requirement increases the public health risk since it reduces the amount of time that customers have to wear a face covering.

The operation of tasting rooms are essential to the survival of beer manufacturers since they rely heavily upon on-site sales in which customers visit their facility and try various products before purchasing larger quantities, according to the complaint.

In lawsuits against the state, churches have similarly pointed to the allegedly discriminatory application of lockdown orders. They have argued there's no scientifically justifiable reason for some businesses, such as alcohol stores and bicycle repair shops and grocery stores being allowed to operate indoors while they cannot.

Churches across the nation have appealed to the U.S. Supreme Court to block such restrictions after the high court enjoined New York's order limiting the number of people who can gather for religious activities.