State defines 'substantial food' for alcohol-to-go

Cocktails-to-go for sale at Dudley's bar and restaurant in Manhattan... — Cocktails-to-go for sale at Dudley's bar and restaurant in Manhattan on March 19, 2020, after bars and restaurants were closed by New York CIty as the COVID-19 pandemic began. Credit: Getty Images/Victor J. Blue

By Michael Gormleymichael.gormley@newsday.com @GormleyAlbanyUpdated April 11, 2022

ALBANY — The state Liquor Authority on Monday said a sandwich, chicken wings and other “substantial food” must accompany wine and alcoholic drinks in takeout packages from restaurants under a new law. The state agency also took a hard line on efforts to circumvent the law with items such as a bag of potato chips and “a handful of lettuce.”

The new rules became effective Monday when the authority unanimously approved the measure in a special meeting.

The authority was acting on a law included in the state budget adopted Saturday that resumed alcohol-to-go service by restaurants, but only with “substantial food.” The service was popular during the height of the COVID-19 pandemic and its economic shutdown as a way to keep restaurants afloat, but it sunset last year under pressure from liquor stores. Now the service has resumed under a bill pushed by Gov. Kathy Hochul.

“A substantial food item is defined as sandwiches, soups or other foods, whether fresh, processed, precooked or frozen,” according to a statement Monday by the SLA, which regulates alcohol sales. “Other foods are foods which are similar in quality and substance to sandwiches and soups; for example, salads, wings, or hot dogs would be of that quality and substance; however, a bag of chips, bowl of nuts, or candy alone are not.”

The SLA anticipated some opposition. During the pandemic, some restaurants tried to sell small items to qualify as a meal with some naming them “Cuomo Chips” in a derisive reference to then-Gov. Andrew M. Cuomo and his executive order that require food to be part of to-go sales. SLA Commissioner Gary Meyeroff said Monday that some restaurants during the height of the pandemic, instead of requiring a food purchase, had added a $1 or $2 additional charge to a to-go drink order to circumvent the measure.

On Monday, the SLA sent a clear message: “Obvious efforts to circumvent the law, for example, an unreasonably small portion of soup, a serving of canned beans, a handful of lettuce, or charging a small extra fee for an alcoholic beverage in lieu of a food item not actually ordered or delivered will be treated as a violation of the law.”

The state law prohibits restaurants from selling bottles of wine and liquor, which would put them in direct competition with liquor stores.

In this provision, the SLA also issued a warning: “A bottle is defined to mean the wine and/or liquor that the retailer purchases from a wholesaler in a bottle, box, can, or other similar container. Obvious efforts to circumvent the law, such as transferring the contents of a bottle of wine or liquor to a same or equivalent bottle, will be treated as a violation of the law.”

“Restoring alcohol to-go was a watershed moment for the industry,” said Melissa Fleischut, president and CEO of the New York State Restaurant Association. “Restaurants will undoubtedly benefit from this reliable revenue stream and we look forward to working with the SLA to ensure a long-term, thriving alcohol to-go program in New York.”