Sunday, January 1, 2012

Fresh & Easy Neighborhood Market Gets A Reprieve of Sorts On California Self-Service Checkout Booze Ban Law

California's new law that prohibits shoppers from purchasing alcoholic beverages at self-service checkouts in retail stores went into effect today - but with a twist.

The twist is that at the request of the California Grocers Association (CGA), the California Third District Court of Appeals has halted the enforcement mechanism set forth by the California Alcohol Beverage Control Agency (ABC) in its December 23, 2011 advisory.

As we reported on Thursday, the trade association for food and grocery retailers in California filed a lawsuit before Christmas asking the state appeals court to halt an enforcement mechanism outlined by the California Alcohol Beverage Control Agency (ABC) in its December 23 advisory notice because the trade group says the agency's interpretation of the new law, AB 183, "is inconsistent with the statute, unenforceable, and in violation of the California Administrative Procedure Act (APA)."

Read our December 29, 2011 piece for details: The 'Fresh & Easy' Writ: California Grocers Association Files Lawsuit Over Self-Service Checkout Booze Ban Law.

The court says the halt of the ABC advisory will remain in place until there's a decision on the lawsuit filed by the CGA, which means for now retailers don't have to follow the guidelines set forth by the ABC in its December 23 advisory.

AB 183 however is law as of today, which means it's illegal in California for customers to purchase alcoholic beverages at self checkout registers in stores.

Confused? You should be.

What is unclear however is how the law will be enforced. 

For example, Tesco's Fresh & Easy Neighborhood Market has self-service checkouts only in all of stores, including its 135 units in California. There are 184 Fresh & Easy stores. The other units are in Arizona (28 stores) and Nevada (21 stores).

Fresh & Easy calls its self-service system assisted checkout because store employees assist customers with the checkout process if asked.

Additionally, all purchases involving alcoholic beverage sales at the checkouts require assistance from an employee. Whenever a shopper scans an alcoholic beverage item during self-checkout the system locks up, which requires the assistance of a store worker in order for the transaction to be completed. The self-checkout systems at all other retail stores in California work essentially the same way.

As we written previously, based on the language of AB 183 prior to the advisory issued by the ABC last week, it's possible that Fresh & Easy could use its existing self-checkout system as long as any transaction involving alcohol purchases is completely monitored and conducted by a store employee.

The ABC's advisory says this isn't the case however - hence the lawsuit by the CGA.

At present, based on the court's halting of the ABC's enforcement mechanism outlined in the advisory, it appears Tesco's Fresh & Easy will be able to use its existing self-checkout system as long as any customer transaction involving the purchase of alcoholic beverages is monitored 100% by a store employee.

That, however, is our interpretation - and from what our sources tell us is the assumption Fresh & Easy (and the CGA) is operating on today, the first day in which the law takes effect but without the key enforcement mechanism which has been halted by the court pending resolution of the CGA's lawsuit.

Meanwhile, we've checked but there's no word from AB 183's author, San Francisco Assemblywoman Fiona Ma, who a couple weeks ago sent out a press release touting the piece of legislation she wrote, about the controversy surrounding the self-service checkout booze ban law.

Stay tuned. This story is far from over.


Julie Duck said...

I look forward to purchasing a bottle of wine from my Lake Forest store tomorrow - with no fuss and the way it's always been done (via the key code of an employee who authorizes the purchase). The law is useless. Go F&E!

Matthew Brannigan said...

I get carded every time I buy booze at Fresh and Easy - when I go to the local Albertsons or Ralphs manned checkouts I never get carded. Fresh and Easy staff have clearly been told to be extra vigilant and there's nothing wrong with that - it just makes this new law all the more ridiculous.

Fresh & Easy Buzz said...

Matty: Fresh & Easy store employees are told to card any customer who looks younger than age 40.

Fresh & Easy Buzz said...

Julie: Did you buy your wine at the Fresh & Easy store yesterday, as mentioned in your comment? If so, how was the transaction done?

cab said...

I've posted here before about this biased law. It was pushed by the unions to punish FnE for not being union. I hope the court's do kick this law out. Btw... I am a CA at an FnE. Nothing's been said by mgmt, and nothing has changed at check-out. Every wine or beer purchase requires authorization, and you better have id. We were reminded before New Years to CHECK ID!

Julie Duck said...

Thank you for reminding me! I did buy a bottle Cabernet tonight - was not carded. Then again, I am looking 42 today! However, like usual the clerk had to approve me (he knows that I am regular customer, so perhaps he just knew I was good).

Fresh & Easy Buzz said...

UPDATE: Fresh & Easy is using its regular self-service checkout system in all its stores in California, despite AB 183 going into effect on Jan. 1.

The checkout system works this way: When a customer self-scans an alcoholic beverage item, a light goes off and the register is locked.

A store worker then comes to the register and checks the customer's ID if he or she looks to be under age 40.

If all is well, the store worker then punches a code in the register which allows the customer to continue scanning (and completing the transaction) their grocery purchases, including the alcoholic beverage item(s).

As we've reported, Assemblywomen Fiona Ma, the author of AB 183, says this practice does not satisfy the new law.

On the other hand, Tesco's Fresh & Easy believes that it does; that the clerk interacting with the customer once the light goes off and the register locks is a face-to-face interaction, which is one of the key elements of the language of AB 183.

Assemblywomen Ma says a face-to-face interaction per AB 183 means full-service checkout.

The December 23 advisory from the ABC agrees with what Ma says is the language and intend of AB 183, which passed by a huge majority in the California Assembly and a decent majority in the Senate, and was signed into law by Governor Jerry Brown.

The California ABC currently is trying to figure out what to do in terms of enforcing AB 183, since its December 23 advisory has been halted pending the resolution of a lawsuit filed by the California Grocer's Association.

This issue is far from resolved.


Consumer said...

San Francisco Assemblywoman Fiona Ma, who authored AB 183, should be removed from the State for impeding consumer choice and savings as well as grocer efficiency and profits. Ma pushed the bill for union lobbyists. Sorry Ma we’re in the 21st century, not 19th, and technology that can help us do things better; I’m going to use self scanning lanes.