Soon to come to your Local Supermarket– Instant Redeemable Coupons of the digital age!

New technology is difficult to use in the alcoholic beverage industry because old laws and regulations don’t accommodate new ideas. Today, however, we report a feel-good story.

Last year (2016) Governor Brown signed SB-1032, which prohibited wine supplier licensees from offering supplier-funded instant rebate coupons (“$1 Off at the register!”) at retail accounts. This brought wine suppliers into promotional equality with beer suppliers, who lost instant rebates in 2014.  Point of sale instant rebates, it was argued, benefitted large suppliers at the expense of smaller, craft producers.  Large retailer demand for IRC programs as a condition of carrying the product also worried the supplier tier.  Dueling IRC’s were increasingly becoming a very expensive competitive weapon.  The regulatory concern was that retailer redemption practices were prone to abuse because the redemptions went through the retailer.

This year, the California Legislature, recognizing that new technologies justify amendments to existing laws dealing with marketing promotions, added digital rebates to the list of permitted alcohol supplier marketing tools.  Digital rebates differ from instant rebates in several ways; the most important being that redemption is accomplished without running the money through retail accounts.

On October 2, 2017, Governor Brown approved AB-1722 and it is now law in California.  Business and Professions Code § 25600.3, which defines coupons and outlines what are permissible rebate practices, was amended to include “electronic or digital rebates” in the list of permitted alcohol supplier marketing tools.  The “iBotta bill,” as some call it, refers to one new mobile application that offers electronic digital rebates that can be redeemed during a sale without retailer involvement. We expect there will be more digital coupon vendors very soon.

AB-1722 also closed a promotional work-around in the earlier law that allowed beer and wine suppliers to continue to fund instant rebate coupons for non-alcohol products.*  New section 25600.3 now refines the definition of “coupon” to include a discount on the purchase of any item, whether it is an alcoholic beverage, or not.

Electronic digital rebates are a new and exciting tool for consumer engagement, and we expect more tools of this nature to come into existence as the technology to bring suppliers and consumers together at the point of sale develops. Think about the act of scanning a register receipt resulting in a consumers account being credited for a significant portion of the purchase price. Coupon clipping will be ancient history.

The new world of digital coupon clipping begins on January 1, 2018.


*We’ve received a few questions on whether this amendment impacts spirits suppliers, and their ability to offer cross-promotional instant rebate coupons for non-alcoholic products.  Spirits suppliers can breathe a sigh of relief, as their privileges remain unchanged after this refinement of the definition of “coupon.” Spirits suppliers are still permitted to offer “discount[s] or rebate[s] on the purchase of any item so long as no nonalcoholic beer, beer, malt beverages, or wine products are advertised or promoted by these licensees in connection with the discount or rebate.” Business and Professions Code Section 25600.3(c)(4)(B).

ABC Enforcement - Trends and Predictions

What wineries should know about beverage law, rules and investigations

By: John Hinman, Rebecca Stamey-White and Jeremy Siegel

As long time supporters of Wine Business Monthly, we are always more than happy to contribute when given the opportunity.  Wine Business Monthly is the wine industry’s leading publication for wineries and vineyards, and they asked us to provide their readers with an overview of the California Department of Alcohol Beverage Control’s current enforcement trends, and what we see in the near future. 

The article, which can be found in the April issue of the magazine, touches on some of the bigger cases we have defended over the past few years, the lessons learned from these cases, and areas where we have been able to effectively negotiate with the ABC to not only avoid costly hearings for our clients but to further their marketing and sales agendas through legally compliant programs.  These areas include social media marketing and advertising, indirect ownership and other interests between retailers and suppliers, as well as the important details and restrictions that flow from events such as winemaker’s dinners.  Looking forward toward this year’s ABC enforcement priorities, we also commented on a recent uptick in ABC enforcement with regards to credit laws, we touched on the growing prominence of unlicensed third parties in the wine space and we noted that the ABC’s trade enforcement unit is enlarging and becoming more active.  You may never know when that knowledgeable new consumer at your event is really an ABC Agent testing compliance. 

We hope that this article highlights the value of understanding the laws and policies that govern activities in our highly regulated space, as well as the value of consulting effective and experienced alcohol counsel when in doubt.  Grappling with the alcohol laws is not for the faint of heart, but with strong compliance programs, direct confrontations with the ABC (in California and throughout the US) should be few and far between. 

New Alcohol Delivery Oversight on the Horizon

By Rebecca Stamey-White and Jeremy Siegel

We’ve been hearing rumblings about possible legislation moving forward in Sacramento that will give the California Department of Alcoholic Beverage Control (“ABC”) more oversight over companies that deliver alcohol products here in California. Last week, we got our first look at Senate Bill 254, which had been a mere placeholder since its introduction on February 7 by Senator Portantino.  The proposed bill would add Business and Professions Code Section 25513 to the Tied-House Restrictions of the California ABC Act (as well as similar sections in the Code pertaining to tobacco, not covered by this blog post), which would for the first time define a “delivery network company,” and would prohibit companies that deliver alcoholic beverages (and/or tobacco products) from delivering these regulated products until receiving ABC approval of their delivery systems and abiding by certain requirements intended to curb access by minors. 

Under the bill, a “delivery network company,” defined as an “an organization… that provides prearranged delivery as an act of enrichment, financial or otherwise, of goods or services using an online-enabled application or platform to connect consumers with goods or service [sic] and to have those goods or services delivered directly to the consumer by an individual compensated by the organization,” would be required to submit its “system” to the ABC for review and approval.  That system must also include the following elements:

  1. A means of verifying that the recipient of alcoholic beverages is 21 years of age or over;
  2. Person-to-person delivery;
  3. Delivery drivers that are 21 years of age or over;
  4. The ability for consumers to suspend delivery for any period of time to their designated primary delivery location, and
  5. No delivery to college or university grounds.

As currently drafted, the bill covers unlicensed service providers (Third Party Providers or “TTPs”) as well as current ABC licensees with privileges to sell alcohol directly to consumers that also provide delivery services to its customers.  We think it unlikely that the author’s intention was to include all retail deliveries of alcohol (a subject already covered by existing ABC regulations), but unless delivery network company is more narrowly defined, all licensees with off-sale retail privileges that currently deliver alcoholic beverages to consumers should be watching this bill.

While this is just the first draft of legislation that so far focuses on the ABC’s core constitutional priority of preventing sales to minors, a worthy and important goal, many questions regarding the regulation of delivery of alcohol still remain unanswered by this bill, including many we face in our daily practice:

  1. What types of verification will be required and what kinds of records will the delivery network company need to collect? Signature capture, as required by UPS, Fedex and other shipping providers?  ID scanning?
  2. What does person-to-person delivery mean? Is it a prohibition against deliveries without an adult present to receive the delivery or something else?  What needs to happen to the product or the transaction if no one is there to receive the order?  How must returns be handled?
  3. What does it mean for the consumer to be able to suspend delivery to its primary delivery location and how does that advance the ABC’s interests in preventing sales to minors and encouraging responsible delivery of alcoholic beverages?
  4. Will the ABC also want to see protocols for preventing sales to obviously intoxicated recipients?
  5. Specifically as to TTPs, will the ABC also be reviewing flow of funds, percentage fees, tied-house implications and other hot button issues not covered by this legislation, or will they be restricted to reviewing only the portions of the system that prevent sales to minors?

Up until now, there have been no laws or regulations that specifically cover TPPs, which do not have an ABC license category.  The only substantive guidance for TPP businesses working with alcohol licensees has been ABC regulations concerning retail delivery and the industry advisories issued by the ABC in 2009 and 2011 (the “ABC Advisories”).  These ABC Advisories were originally issued to provide guidance for licensees seeking to leverage the consumer acquisition reach of the various internet and app sales and marketing platforms (Amazon, Groupon, LivingSocial, Lot18 and many others) that did not want to hold alcohol beverage licenses, but instead focused on advertising, customer acquisition, and online tools to facilitate sales and fulfillment of products or experiences including alcoholic beverages.  The ABC Advisories focused on the level of control and responsibility a licensee must maintain when utilizing a TPP as its agent, avoiding indirect unlawful gifts and retail inducements, flow of funds requirements, and avoiding engaging a TPP to conduct activities or taking margins that would otherwise require an independent alcohol license. 

While helpful guidance (for industry members, TPPs, alcohol lawyers and the many other states that have used the ABC Advisories as a model for their own TPP guidelines and laws), the ABC Advisories are not law, and the ABC has thus far declined to pre-approve TPP platforms, including the now ubiquitous delivery systems that are the subject of this bill and make up a large part of our firm’s TPP practice.  We’ve recently seen some uptick in ABC enforcement in this space that has provided some additional guidance on the ABC’s current stance on TPPs, but many TPPs have been operating in a legal gray area, dependent on legal memoranda from law firms focusing on alcohol beverage regulation like our own in order to ease investor concerns about legal compliance. 

We encourage any and all licensees and TPPs involved with alcohol delivery to get involved in the legislative process now to make their voices heard so that this bill can provide appropriate guidance to the ABC in the responsible and appropriate regulation of delivery network companies.  And if this bill becomes law, it’s a good time for businesses involved in this space to call your legal counsel to ensure you have the protocols in place to obtain the ABC’s approval.

New TTB Labeling Requirement Regulations: Out-of-State Bottling Is Not Created Equal and Consumers Right to Know Where the Grapes in their Wine Come from is Compromised

By: Jeremy Siegel and John Hinman

We are going to unpack the impact of the TTB’s proposed rule changes concerning the current exemption available from the normal labeling requirements for wine sold solely in-state made from grapes or wine that are brought in from other states.

The current exemption permits winemakers to include information on in-state labels that they would ordinarily be foreclosed from including on national labels, such as: appellation of origin, varietal and vintage year.  Strict compliance with AVA regulations is being cited by certain vintners who believe it is necessary to eviscerate the in-state exemption in order to protect their valuable AVA’s. This has the consequence of preventing small wineries in remote states from providing their consumers with truthful and accurate information about the wine they are drinking locally.

Regardless of the position of the reader on these issues, we encourage all members of the industry to submit comments to the TTB before the August 22, 2016 deadline.  This is an important debate and worthy of attention.

The TTB Proposed Notice of Rulemaking

There has been a lot of confusion and much spilled ink about this topic since the TTB’s announcement on June 21 that, due to “concerns raised by wine industry members and members of Congress regarding the accuracy of label information” (read the press release here) the TTB is proposing a rule change that places restrictions on what information will be permitted to appear on the labels for these wines.

Winemakers NOT affected

Please note that winemakers who currently apply for certificates of label of approval (“COLAs”) for wines using grapes from the same state where they make their wine will not be impacted by these changes, and they can all stop reading here if they like.  For the rest of the wine industry that does rely on the exemption from label approval process, or cares about the exemption maybe because they are a small winery in a remote state, read on. 

Winemakers who ARE affected

The proposed changes will severely limit the usefulness of the exemption from the normal label approval process for winemakers and bottlers who only sell their wines in-state. 

The current beneficiaries of this exemption fall in to two camps: (1) those who want to include information about the source of the grapes, and the varietal and vintage of their wine but ordinarily may not because the wine is not made in the same or adjacent state as where the grapes are grown, and (2) those who are not concerned with identifying the source of the grapes or wine they purchase from out of state but do want to inform their consumers of the varietal and vintage of the wine they are selling. 

If the proposed changes are adopted, the ability of both of these types of winemakers/bottlers to effectively market their products will be severely hampered, and consumers will be forced to make wine purchasing decisions for locally produced wines without access to such important information as where the grapes came from, the type of grapes used to make the wine, and the year the grapes were harvested. 

The Current Labeling Regulations

Under the current regulations, a wine producer may apply for and receive an exemption from the standard labeling requirements if their wine will NOT enter interstate commerce. See 27 CFR § 4.50(b).  Ordinarily, prior to a wine that is more than 7% alcohol by volume being labeled and sold, the winemaker must apply for a COLA from the TTB if it wants to list on the label, among other things, the grape varietal (§4.23), the appellation of origin (§4.25), the vintage (§4.27) and the type designation of varietal significance (§4.28).  Each of these labeling attributes has specific requirements that must be met before the TTB will issue the COLA.  For example, in order for a wine label to list an appellation of origin, “[a]t least 75 percent of the wine [must be] derived from fruit … grown in the appellation area indicated, [the wine] must be fully finished … if labeled with a State appellation, within the State or an adjacent state; or if labeled with a county appellation, within the State in which the labeled county is located; and it [must conform] with the laws and regulations of the named appellation area governing the composition, method of manufacture, and designation of wines made in such place.” 

In order to include grape varietal, vintage and/or designation of varietal significance, the label must ALSO include an accurate appellation of origin, meaning appellation of origin is really the baseline labeling requirement.

The Hole (some consider it a hole anyway) in the Regulations that the Proposed Rule Change would close – Use of the Technique of selling the wine only within the state in which the winery exists

Currently, if the bottler or winemaker of a given wine can show to the TTB’s satisfaction “that the wine to be bottled or packed is not to be sold, offered for sale, or shipped or delivered for shipment, or otherwise introduced in interstate or foreign commerce” then the bottler/winemaker can apply to be exempt from the above listed requirements, and may include information on the wine label that would not normally conform with the baseline appellation requirements for information.  This is very useful for the small winery with limited access to good fruit from its own vineyard because of bad weather, bad crop years or other causes that routinely plague small wineries in remote states outside of the major grape growing states.

For example, in the ordinary course, if a winemaker in New York purchases and ships pinot noir grapes from a vineyard in Sonoma County to make and bottle the wine in New York, the wine could not be labeled as Sonoma County Pinot Noir, nor could it be labeled as New York Pinot Noir.  This is because, while the wine was derived from grapes grown in Sonoma County, it was finished in New York, so the wine ends up somewhat of a TTB pariah that neither state can claim as its own. The wine was not “fully finished” in Sonoma County but rather in New York.  If this winemaker wishes to label the wine as Sonoma County Pinot Noir, however; he or she can apply for an exemption from the COLA requirements so long as the wine was sold solely in New York and is labeled “For Sale in New York Only.”  This exemption process permits the winemaker to indicate the provenance of the wine made even though it does not meet the strict federal labeling requirements of 27 CFR §4.25.  A prime example of a winery that would be impacted by these rule changes is Brooklyn Winery, which makes well-received Cabernet Sauvignons from grapes sourced from the Napa Valley. 

Labeling with the current exemption, and without the current exemption

Without the exemption: Currently, a winemaker or bottler that doesn’t want to apply for the intrastate exemption from the requirement that the appellation of origin be listed, while still listing grape varietal and vintage, may use the national appellation.  For example, if the New York winemaker above doesn’t feel that it is important to disclose that he or she is using California grapes or wine, but still wants to include the grape varietal and vintage, without an exemption, the label would have to indicate at a minimum that the wine was an “American” Pinot Noir, 2016 vintage, which is the most general appellation of origin allowed. 

With the exemption: However, with an exemption, the label for this wine could include the varietal and vintage, and a descriptive name such as “Big Apple Winery” without any actual appellation of origin. The concern here is that this type of labeling could lead consumers to believe that the wine was in fact made in New York from New York grapes.  This type of exemption is widely used in Texas by wine bottlers who purchase wine in bulk from California (where fully 85% of wine is produced in the United States) and bottle it in Texas “for sale in Texas only” and call it something like “Lone Star Winery 2016 Pinot Noir” without an appellation of origin. Again,the concern here is that this type of labeling may mislead consumers into believing that it is a Texan wine.    

Grape Sourcing Safe Harbor Not Affected by the Proposed Rule Change

It is worth reiterating that wineries that must source grapes from out of state because of weather, grape availability or other reasons may still label their wines as “American” and include the varietal and vintage date under regular COLA regulations.  So, a wine made in New York with pinot grapes from Sonoma in 2016 could be labeled as “American Pinot Noir, 2016 vintage” without applying for an exemption. 

Why is the Change Being Proposed?

The intended effect of this proposed change is to limit the ability of out-of-state winemakers with grapes or wine from a state like California to reap any of the identification benefits of using grapes from California and other well-known appellations.  This is an extension of the successful legislative efforts by California winemakers in Napa, Sonoma and other AVA areas that heavily market their AVAs to protect their geographical appellation rights.  For example, California state law (the “conjunctive labeling” laws found at B&P §§ 25241 and 25242) currently mandates that wineries located outside of specific AVAs may not use certain geographical terms on their labels unless all steps of the winemaking process take place within the specific AVA. 

These regulations were put in place to protect the concept that “for more than a century certain California counties have been widely recognized for producing grapes and wine of the highest quality” and to ensure that consumers are not “confused or deceived” by these geographical terms appearing on labels of wines that were not produced completely within the confines of the AVA.  Because California state law does not apply beyond California borders, the conjunctive labeling laws are not binding on winemakers in other states.  This is one of the problems that the TTB Rule change appears to be intended to address.

The Current exemption as a work-around

The current exemption process provides an in-state work-around for winemakers that purchase grapes from remote AVAs to indicate the source of their grapes and to provide consumers with accurate information about what is actually  in their wine, no matter where the grapes were actually grown or ultimately fermented into wine. The proposed rules will completely eliminate this exemption.

This change has the additional effect of preventing winemakers and bottlers who are not concerned with disclosing the source of the grapes they use to make wine from still being able to call out the varietal and vintage except through the identification of the wine as “American.”

Consumer and Winery Concerns

One major concern is that both camps of winemakers and bottlers (typically small wineries) could soon be faced with holding significant inventories of wine that, because they lack the type of information on their labels that consumers rely to make their purchases, will be worth much less money and will be difficult or impossible to sell even within their local market area.   Consumers, for their part, generally have the right to know basic information about what it is that they are consuming, and where it comes from.  This Rule change affects those rights.

Alternatives for comment – there is no middle ground

We encourage all involved in the current system of wine production to make their views known to the TTB right away.  While we are proponents of truth in labeling and full disclosure, we also understand the importance of protecting AVA rights. There are most definitely two sides here.

If this rule change is adopted there will be no middle ground for small wineries to disclose the source of out of state grapes used in their wine. Thus, maintaining the current exemption is one alterative that should be seriously considered.

The Potential First Amendment Impact of the Proposed Regulation

Another alternative if the proposed regulatory changes are adopted, which the TTB is aware of from its experience with the Cabo Distributing “Black Death” First Amendment case, would involve potential First Amendment litigation on behalf of small wineries in remote states asserting a winery right to inform consumers of truthful information under 27 CFR 4.38 (a) [“…In addition, information which is truthful, accurate, and specific, and which is neither disparaging nor misleading may appear on wine labels.”] and general First Amendment jurisprudence. Right now Section 4.38(a) disclosure is limited by the caveat that no additional information provided may conflict with other required label information.  

For example, if a winery includes narrative information on the back label of an “American wine” providing the consumer with disclosures about where the grapes that went into the wine were sourced, it would be in violation of the law.  These restrictions would also impact any advertising and marketing materials wineries put out because,under Section 4.64(g), advertisements of wine cannot include any “statements indicative or origin” unless that same information appears on the label. Thus a winery website, blog or twitter post that discloses the source of grapes in the wine is also a violation of the law under the proposed regulation.

It is currently unclear what position the TTB would take if a First Amendment claim was asserted following the denial of a back label narrative submission, or following advertising (which has the same restrictions and privileges) that informs consumers of where grapes for a particular wine were sourced.  It is quite clear that communication of the constituent ingredients in food products is commercial free speech and the test would then be to weigh the winery right to communicate truthful information to consumers against the TTB policy of protecting AVA designations by squelching information that conflicts with the labelingregulations, regardless of the truthfulness of such information.

This may be a situation where the proponents of the rule change should be careful what they ask for, because they might get it.

Interested parties can file comments with the TTB regarding the proposed changes here.  

Counterfeit or Artisanal Mexican Spirits? Pick your Poison, or your lime wedge

New proposed regulations in Mexico threaten the ability of small producers of artisanal agave spirits to market what makes them artisanal

Much like how the farm-to-table movement in restaurants has placed the source of the food on your plate front and center, the Mexican agave artisanal spirits movement is highlighting each element that goes into a glass, from the cultivation of the plant and the methods for harvesting and cooking the piña to the distillation process and ultimate bottling. Long gone are the days of tequila or mezcal with its worms, relegated to shots and frozen margaritas.

“New” Mexican agave spirits are making inroads in the American bar scene precisely because they can be marketed as artisanal and small-batch, with a focus on the specific types of varietal used in the distillation and the specific regions in which they are produced—a transparency that’s particularly attractive to American bartenders and imbibers alike. However, a new regulation proposed in Mexico may severely limit what information will appear on bottles of Mexican spirits in the future.   

traditional mezcal production  source:

traditional mezcal production source:

In a proposed regulation first published in November 2015, the Mexican government plans to create new classifications and requirements for labeling and marketing of agave spirits, which it claims will combat the issue of counterfeiting and better protect brands.

The introduction to this new regulation, PROYECTO DE NORMA OFICIAL MEXICANA PROY-NOM-199-SCFI-2015, “BEBIDAS ALCOHÓLICAS – DENOMINACIÓN, ESPECIFICACIONES FISICOQUÍMICAS, INFORMACIÓN COMERCIAL Y MÉTODOS DE PRUEBA,” or “NOM-199,” states that its purpose is to protect consumers from deceptive marketing by setting standards for the naming, production, and testing of agave spirits produced in Mexico. 

In spite of the positive intention behind the new regulation, these same classifications and regulations may ultimately create consumer confusion and threaten the ability of legitimate small producers to advertise the special qualities of their authentic spirits that are driving the increased demand in the marketplace. Outrage is being voiced on industry-specific blogs, with fears that the proposed regulations will hamstring small producers from standing out in an increasingly-crowded field of competitors, both licit and illicit.  

NOM-199 will change how many Mexican spirits are named and categorized. The biggest change under the new regulation is the creation of a new umbrella spirit called “komil.” Under NOM-199, any agave distillate spirit that is 51% or more agave and is produced outside of certain defined Denomination of Origin regions in Mexico must be labeled komil, a word not defined in the regulation nor known by most consumers, but which appears to originate from the Nahuatl word for “alcoholic beverage.”

In the new world of Mexican spirits there would be no distinction between a small-production 100% agave spirit made using traditional methods, and a 51% agave / 49% filler mixture, including industrial spirits made on a mass scale in commercial facilities. No reference can be made to what agave varietals are used; in fact, the word “agave” itself cannot be used in any labeling. As a result, small producers would be unable to distinguish their products based on agave varietal, location, or production method and consumers would have no clue what they were imbibing under the komil name.  (To further complicate matters, Wild Agave Imports, LLC of Texas filed a USPTO intent to use trademark application in January for the word mark “Komil.”)

It is not yet certain that this regulation will, in fact, be enacted. A similar regulation was defeated in 2012 after a concerted effort by independent producers and retailers. There are already a number of petitions opposing NOM-199 that have are gaining support, and it may very well be that the public outcry will be enough to change the course of this regulation. On March 17, David Suro, president of the Tequila Interchange Project, a non-profit advocating on behalf of the agave distilled spirits industry, and one of the leading voices of Mezcal promotion in the United States, and others filed their comment in opposition of NOM-199 with Mexico’s Regulatory Commission.

Retailers and consumers of agave spirits here in America should watch with interest as NOM-199 goes through its comment and enactment process. Depending on what happens, we should all keep our eye on the Mexican spirits that end up behind bars and on shelves in the near future.  

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  89. Commercial Speech And Alcoholic Beverages - Part II
  90. Craft Beverages: Social Media Marketing the Effective and Compliant Way
  91. Commercial Speech And Alcoholic Beverages - Part I
  93. The Biggest Retailer in the World vs. the TABC
  94. Rebecca Stamey-White presents Emerging Issues in Wine Law
  95. Top Beverage Alcohol Law Firm Adds and Elevates Partners
  96. Illinois Qui Tam Lawsuits—Private Enforcement Of a State Claim: A Bonanza For A Plaintiff’s Lawyer And A Rip-Off Of Retailers
  97. BOOZE RULES OF SOCIAL MEDIA: The Retailer Right to Pay Exception
  99. AB 2004: Brewer's Incremental Parity with Wine Makers
  100. Expanding, Proud Of It, and Wanting to Tell the World