Berkshire Hathaway’s McLane Company, a $28 billion supply chain services company, is suing in federal court over Texas’s “One Share” rule which currently prohibits it from selling alcohol in Texas.
The Alcoholic Beverage Code regulates the alcoholic beverage industry in Texas by establishing a three-tier system where participants in each tier—manufacturers, distributors and retailers—must operate independently. These laws are commonly called “tied house laws,” and prohibit control or influence among the tiers.
McLane Company, based in Temple, Texas, and the Texas Association of Business are suing the Texas Alcoholic Beverage Commission (TABC) claiming that the TABC has taken this common prohibition to an absurd extreme by asserting that even one overlapping share of stock ownership across tiers, whether direct or indirect, violates its interpretation of the law, the so-called One Share Rule.
They assert that the TABC is applying this rule arbitrarily and only in limited instances. They note that in the last year, over 40 manufacturers, distributors and retailers with overlapping ownership had over 2,500 permits approved or renewed by the TABC.
“The TABC’s application of Texas alcohol law defies common sense as the majority of alcohol manufacturers, retailers and distributors have some over-lapping ownership with businesses in other tiers,” said Bill Hammond, CEO of the Texas Association of Business. “The TABC is arbitrarily picking winners and losers, and that is simply not how we operate in Texas.”
They also claim that the TABC is out-of-step with other states that operate under a three-tier system. For example, in New York, Maryland, Arkansas, Kansas, Kentucky and Michigan, companies are prohibited from having interests across more than one tier only if they control or influence the activities of businesses in more than one tier.
“The Texas Association of Business opposes regulatory actions—like the TABC’s so-called One Share Rule—that harm the Texas economy and job creation, for no good reason. We’re taking this action to demand that our government create a level playing field for all business in the State of Texas—anything less goes against the very fabric of our state,” said Hammond. “Texas has succeeded principally because we make it easier, not harder, to do business here. Regrettably, the TABC’s policies do not reflect the vision and philosophy of the state, and through its absurd interpretation of the Alcoholic Beverage Code, it is discouraging business expansion.”
The Texas Association of Business says it believes that the TABC’s erroneous interpretation of the law and inconsistent licensing practices clearly violate the protections afforded to all businesses by the U.S. Constitution.
The Texas Association of Business calls for the TABC to abandon the so-called One Share Rule, and begin enforcing the three-tier system in what it feels is a fair, consistent and legal manner, similar to other state alcohol agencies.
McLane’s parent company, Berkshire Hathaway, owns 2% of Walmart, and this has been the basis for the prohibition.
Berkshire acquired McLane from Wal-Mart in 2003, and roughly one-third of its annual revenues are still from Wal-Mart.
© 2016 David Mazor
Disclosure: David Mazor is a freelance writer focusing on Berkshire Hathaway. The author is long in Berkshire Hathaway, and this article is not a recommendation on whether to buy or sell the stock. The information contained in this article should not be construed as personalized or individualized investment advice. Past performance is no guarantee of future results.