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  The ILCC Legal Division

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TPP-35:
Original Package; Refilling

I. Purpose

The purpose of this policy is to set the definition of “original package” and procedures licensees may refill those original packages.

II. Background

Two sections of the Liquor Control Act must be examined, namely:

A. What is an original package?

5/1-3.06. Original Package

"Original package" means any bottle, flask, jug, can, cask, barrel, keg, hogshead or other receptacle or container, whatsoever, used, corked or capped, sealed and labeled by the manufacturer of alcoholic liquor, to contain and to convey any alcoholic liquor.

5/6-22. Refilling Original Packages – Retail Sales from Original Packages

No person except a manufacturer or distributor, or importing distributor, shall fill or refill, in whole or in part, any original package of alcoholic liquor with the same or any other kind or quality of alcoholic liquor, and it shall be unlawful for any person to have in his possession for sale at retail any bottles, casks or other containers containing alcoholic liquor, except in original packages. (Source: P.A. 82-783) (from Ch. 43, par. 137)

Sec. 1-3.06 indicates that the package is the vessel into which the alcoholic liquor is put by the manufacturer, or other, which is then sealed and labeled.

For purposes of considering what is the original package, we can also look to the guidelines of the Bureau of Alcohol, Tobacco and Firearms. The Application for and Certification/Exemption of Label/Bottle Approval form which is required for all alcoholic products sold in the United States makes reference to the Brand, Class and Type, and Net Contents, and requires the affixing of a complete product label. It appears settled that the vessel with approved label constitutes the “original package” for all purposes.

Neither the shipping container (such as flats for beer) nor cardboard cases (such as for distilled spirits and wine) nor the printed packaging (such as the open six-pack or the 12- or 24-pack) are original packages for any purpose herein.

Predicated upon the foregoing, it is the bottle, can, etc., into which the alcoholic liquor is put by the manufacturer, and not the packaging associated with the vessels.

B. Who may refill an original package?

The following statutory and rules sections are applicable:

5/1-3.06. Original Package

"Original package" means any bottle, flask, jug, can, cask, barrel, keg, hogshead or other receptacle or container, whatsoever, used, corked or capped, sealed and labeled by the manufacturer of alcoholic liquor, to contain and to convey any alcoholic liquor. (Source: P.A. 82-783) (from Ch. 43, par. 95.06)

5/1-3.07. Distiller

"Distiller" means a person who distills, ferments, brews, makes, mixes, concocts, processes, blends, bottles or fills an original package with any alcoholic liquor. The above definition for a distiller includes a manufacturer of wine, but does not include a manufacturer of beer or bottler of wine. (Source: P.A. 82-783) (from Ch. 43, par. 95.07)

5/1-3.08. Manufacturer

"Manufacturer" means every brewer, fermenter, distiller, rectifier, wine maker, blender, processor, bottler or person who fills or refills an original package, whether for himself or for another, and others engaged in brewing, fermenting, distilling, rectifying or bottling alcoholic liquors as above defined. (Source: P.A. 82-783) (from Ch. 43, par. 95.08)

5/1-3.13. Manufacture

"Manufacture" means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle or fill an original package with an alcoholic liquor, whether for oneself or for another, and includes blending but does not include the mixing or other prep­aration of drinks for serving by those persons authorized and permitted in this Act to serve drinks for consumption on the premises where sold. All containers or packages of blended alcoholic liquors shall have affixed thereto a label setting forth and stating clearly the names of all ingredients which the blended alcoholic liquors offered for sale shall contain. (Source: P.A. 82-783) (from Ch. 43, par. 95.13)

5/1-3.14. Rectifier

"Rectifier," means any person who rectifies, ferments, brews, makes, mixes, concocts, processes, blends, bottles or fills an original package with any alcoholic liquor, other than by original or continuous distillation. (Source: P.A. 82-783) (from Ch. 43, par. 95.14)

5/6-22. Refilling Original Packages – Retail Sales from Original Packages

No person except a manufacturer or distributor, or importing distributor, shall fill or refill, in whole or in part, any original package of alcoholic liquor with the same or any other kind or quality of alcoholic liquor, and it shall be unlawful for any person to have in his possession for sale at retail any bottles, casks or other containers containing alcoholic liquor, except in original packages. (Source: P.A. 82-783) (from Ch. 43, par. 137)

5/6-7. Affixing Stamps – Labeling – Sealing

No manufacturer or distributor or importing distributor or foreign importer shall sell or deliver any package containing alcoholic liquor manufactured or distributed by him unless the same shall have affixed thereto all cancelled revenue stamps which may be provided by Federal law, and shall also bear t­hereon a clear and legible label containing the name and address of the manufacturer, the kind of alcoholic liquor contained t­herein, and in the case of alcoholic liquor (other than beer and imported Scotch whiskey and brandy 4 years old or more) the date when man­ufactured and the minimum alcoholic content thereof. No person or persons, cor­poration, partnership or firm shall label alcoholic liquor as "whiskey" or "gin" or shall import for sale or shall sell in this State alcoholic liquor labeled as "whiskey" or "gin" unless the entire alcoholic content thereof, except flavoring materials, is a distillate of fermented mash of grain or mixture of grains. Alcoholic liquor of the type of whiskey or gin not conforming to this requirement must be labeled "imitation whiskey" or "imitation gin" (as the case may be). No spirits shall contain any substance, compound or ingredient which is injurious to health or deleterious for human consumption. No package shall be delivered by any manufacturer or distributor or importing distributor or foreign importer unless the same shall be securely sealed so that the contents thereof cannot be removed without breaking the seal so placed thereon by said manufacturer, and no other licensee shall sell, have in his pos­session, or use any pack­age or container which does not comply with this Section or does not bear evidence that said package, when delivered to him, complied herewith. (Source: P.A. 82-783) (from Ch. 43, par. 124)

Section 100.70 Labels

  1. No manufacturer, nonresident dealer, distributor or importing distributor shall sell or deliver any package or container containing alcoholic liquor manufactured or delivered by such person unless the same is labeled in conformity with this Section.
  2. General requirements and Restrictions:
    1. Federal Alcohol Administration Regulations Nos. 4, 5 and 7 relating to the labeling of wine, distilled spirits and malt beverages (27 C.F.R. Section 4, 5, and 7, April 1997, not including any later amendments or editions), are hereby adopted and made a part of this Section for labeling every package or container of wine, distilled spirits and malt beverages, with the following exceptions:
      1. Wine includes all products as defined in Section 1-3.03 of the Act [235 ILCS 5/1 3.03] and Section 100.10(h) of this Part.
      2. Alcoholic content must be stated on all wine labels.
    2. The aforesaid regulations shall apply to wine, distilled spirits and malt beverages packaged purely for intrastate commerce within the State of Illinois to the same extent as though intended for interstate or foreign shipment.
    3. No manufacturer, nonresident dealer, distributor or importing distributor shall affix any label to any package or container containing alcoholic liquor for sale or delivery in the State of Illinois until such label has been submitted to and approved by the federal government. Such manufacturer, nonresident dealer, distributor or importing distributor shall submit to the Illinois Liquor Control Commission a photostatic copy of the federal label approval.
    4. No package or container containing alcoholic liquor labeled as "whiskey" or "gin" may be imported into, delivered or sold in the State of Illinois unless the entire alcoholic content thereof, except flavoring materials, is a distillate of fermented mash of grain or mixtures of grains. Packages or containers of alcoholic liquor of the type of whiskey or gin not conforming to the requirement must be labeled "imitation whiskey" or "imitation gin", as the case may be.
    5. Wine Labels
      1. Wine labels must contain the name and address of the manufacturer or the bottler of the product.
      2. For the purpose of this Section, the use of an assumed trade name which has been registered with the Clerk of the County in which the manufacturer or bottler is located, is acceptable.
    6. Malt Beverage Labels
      1. Malt beverage labels must contain the name and address of the brewery which manufactured or canned or bottled the product.
      2. For the purpose of this Section, the use of an assumed trade name which has been registered with the Clerk of the County in which the manufacturer or bottler is located, is acceptable.
    7. Distilled Spirits Labels
      1. Labels of all alcoholic liquors other than wine and malt beverages must contain either the phrase "Bottled By" or "Distilled By" (or other descriptive identification of the manufacturer of the product) followed by the name and address of the bottler or manufacturer, as the case may be.
      2. For the purpose of this Section, the use of an assumed trade name which has been registered with the Clerk of the County in which the manufacturer or bottler is located, is acceptable.
    8. No statement of age shall be made with respect to gins, cordials, liqueurs or specialties.
    9. The Commission shall withhold approval of any label if it has reasonable cause to believe that the wording or design contained on the label may, in any manner, tend to deceive the purchaser as to the true nature of such alcoholic liquor. (Source: Amended at 21 Ill. Reg. 5542, effective May 1, 1997)

Section 100.290 Refilling

No retail licensee shall offer for sale or possess on said licensed premises:

  1. Any original package of alcoholic liquor which contains any kind or quality of alcoholic liquor other than that which has been sealed and labeled by the manufacturer or nonresident dealer of alcoholic liquor, to contain and to convey said alcoholic liquor.
  2. Any original package of alcoholic liquor to which there has been added any water or other substance.
  3. Any bottles, casks, or other containers containing alcoholic liquor which contain any deleterious, contaminated, filthy, putrid substance or insects. (Source: Amended at 20 Ill. Reg. 834, effective January 2, 1996)

Section 100.10 Definitions

The following words or phrases are defined as follows: "Manufacturer" shall include every person who, in the process of filling orrefilling an original package with alcoholic liquors purchased by such person, changes the degree or quality of such alcoholic liquors by any manner or means whatsoever.

III. Conclusion

The only conclusion which can be reached after review of the foregoing is that a retailer cannot refill. And by way of extension of the foregoing, a retailer may not under the foregoing authority “pre-fill” containers with alcoholic liquors.

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