Contain This

What You Should Know about the Confusion over To-Go Cocktails

Let's talk about how restaurants are selling margaritas and other libations.

By Timothy Malcolm April 17, 2020

The brown paper bag makes the alcohol classy.

A few days ago I called a Houston restaurant, inquiring about picking up dinner and alcohol. Because:

Now, I also knew that if I was to buy a cocktail from a restaurant, it couldn't be sold to me as a pre-mixed drink. Sometime after that waiver was announced (we'll get there), we also learned that the alcohol sold by restaurants must be distributed in the manufacturer's original packaging adhering to size restrictions. That is: If you want a margarita, you're getting, let's say, a 350ml bottle of tequila, a 350 ml bottle of triple sec, a container of lime juice, and a container of salt.

So, on the phone, I asked the worker at this Houston restaurant if it was selling cocktails, specifically, in my words "cocktail kits."

"I'm sorry, say that again?"

"Cocktail kit."

"Sorry, I don't know what-"

"Are you selling cocktails?"

"Oh, yes. It's just mixed here and sold to you in a cup."

"... Can you do that?"

"Well, it has a lid."

That's not legal, per the Texas Alcoholic Beverage Commission, but you can excuse a restaurant for not knowing that. Recent reporting by the Dallas Observer shows that the TABC apparently was sent a waiver request to Gov. Abbott's office that would allow restaurants to not only sell to-go alcohol along with the purchase of food, but to also mix drinks and sell them in closed containers with the purchase of food. And, per reporting done by the Observer, the governor's office granted this request, distributing a press release on March 18 that announced the waiver, leading restaurants to believe they could mix drinks and then sell them to customers.

But then, per the Observer, the TABC sent another waiver request on March 19 that pushed back on the pre-mixing, instead stating that the agency prohibits selling mixed drinks in closed containers for pick-up or delivery. Once again, Gov. Abbott granted the request, then a few hours later, the March 18 waiver was retracted, as if it never happened.

At the end of the day, restaurants aren't allowed to mix alcoholic drinks, then sell them to customers. But with so much confusion and backtracking, how can we blame them?

"I'm in no way casting shade on someone who is doing this," says Melissa Stewart, president of the Greater Houston Restaurant Association. "The regulation as it was amended by the governor during this crisis is what we have." And Stewart confirms that, yes, it's that if restaurants are selling cocktails, alcohol has to be separated in a maximum 375 ml manufacturer-sealed bottle.

But have you seen a 375 ml bottle? There's a reason it's not the preferable vessel for alcohol distribution. For example, your bottle of Tito's is probably a 750 ml bottle, industry standard for clear spirits. The whiskey bottle you got at home? Probably a 1.75 L bottle, because again, that's what's most demanded, and thus, supplied.

"The smaller you go, the packaging price doesn't get much smaller," says Stewart. "To be able to price it in a way that gives you the same profit margin is a challenge."

What I've found is those selling cocktails in the legal way are pricing correctly. Yes, you're getting a 375 ml bottle, which gets you about eight 1.5-ounce pours for cocktails, but it's sold for what you'd pay at a liquor store. 

Still, can you blame a restaurant if it doesn't want to risk a thinner profit margin when it can just mix a margarita and pour it into a milk gallon jug?

The issue for the consumer is if she or he is caught with it in the car. That's against the law, as that milk jug would be classified as a container that has been open (by the restaurant when pouring the mix in). The penalty for the consumer: a written citation and Class C misdemeanor with a maximum $500 fine.

"The best practice for any time you're driving with alcohol, and I don't care if you're coming from the grocery store, the liquor store, but put it in your trunk," says Stewart, who says first and foremost, never drink and drive, and second, whenever you're buying alcohol to take home—whether or not it's sealed—you're taking a risk since "there's a temptation issue."

"We've very thankful that the governor gave us this waiver to do this much," she continues. "We know there are many more serious things than 'Can I get a margarita in a cup to go,' but for a lot of operators it's a significant cash flow option. It's a hard argument either way."

I'll stick to buying kits, which is what the governor's office and the TABC ultimately want you to do. But in this time of confusion, isn't it annoying that we have worry at all about enjoying a couple drinks from our local restaurants?

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