Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

Wine & Vineyard Law: Federal and New York State Licenses, Permits & Regulations


Published on

This presentation was completed for the National Business Institute seminar on wine and vineyard law held in Long Island, New York on November 10, 2015. My part of the 1 day seminar focused on federal and state licenses and permits. The recording is available for purchase from NBI. This presentation also discusses the governmental players, the types of wineries, where wine can be sold, excise tax, wine labeling (including organic labeling and varietal labeling), wine trade, record keeping and advertising.

Published in: Law
  • Dating for everyone is here: ❤❤❤ ❤❤❤
    Are you sure you want to  Yes  No
    Your message goes here
  • Sex in your area is here: ❤❤❤ ❤❤❤
    Are you sure you want to  Yes  No
    Your message goes here
  • It's genuinely changed my life. I have been sleeping in the spare room for 4 months - and let's just say my sex life had become pretty boring! My wife and I were becoming strangers living in the same house. Thanks to your strategies, I am now back in our bed and the closeness and intimacy have returned. Thank you so much for taking the time to put all this together. It has genuinely changed my life. ♣♣♣
    Are you sure you want to  Yes  No
    Your message goes here
  • Watch My Free Video Packed with My Best Secrets Here ■■■
    Are you sure you want to  Yes  No
    Your message goes here

Wine & Vineyard Law: Federal and New York State Licenses, Permits & Regulations

  1. 1. Wine & Vineyard Law: Federal and New York State Licenses, Permits & Regulations National Business Institute (“NBI”) November 10, 2015 By Cari B. Rincker, Esq.
  2. 2. My Background • Grew up on a beef cattle farm in Central Illinois • Education – A.S. in Agriculture from Lake Land College – B.S. in Animal Science from Texas A & M – M.S. in Ruminant (Beef Cattle) Nutrition from University of Illinois – J.D. from Pace Law School (2007)
  3. 3. My Background • Chair of the American Bar Association, General Practice, Solo & Small Firm Division’s Agriculture Law Committee • My food and agriculture client base – Farmers to ranchers – Small to mid-size agri- business – Food entrepreneurs
  4. 4. And I Also Love Wine
  5. 5. Overview The Players Types of Wineries Licenses, Permits & Other Paperwork Where Wine Can Be Sold Excise Tax Wine Labeling Wine Trade Record Keeping Misc. Issues
  6. 6. The Players
  7. 7. The Players • Permit • Labeling and advertising • Fair trade practices Federal Alcohol Administration Act (“FAAA”) • Qualification of premises • Production • Payment of taxes Internal Revenue Code (“IRC”)
  8. 8. The Players: Federal Level Alcohol and Tobacco Tax and Trade Bureau (“TTB”) • Administers laws imposed by laws set by FAAA and IRC concerning: • Alcohol production and distribution • Wholesale businesses • Alcohol advertising and labeling • Not responsible for retail sale of alcohol or alcohol abuse programs
  9. 9. The Players: New York State Level • Alcoholic Beverage Act (“ABC”) – Governs licenses and regulations within New York State • New York State Liquor Authority • New York Licensing Bureaus – Located in New York City, Albany, & Buffalo – Receives, examines, & investigates license and permit applications
  10. 10. Types of Wineries
  11. 11. Types of Wineries • Typical commercial winery that produces and stores its own wine • Responsible for keeping own records, reports, wine labeling, and paying taxes • Requires establishing a premises, obtaining a bond, and receiving permission from TTB “Stand Alone” Bonded Winery
  12. 12. Types of Wineries • Two or more wineries share use of a bonded winery’s facility • Bonded winery is host & only one required to obtain a bond • Other wineries must qualify on their own as a winery Alternating Proprietor
  13. 13. Types of Wineries • Makes wine that is ordered by customers, who then resell it • Producer must qualify as a fully bonded winery • Crushes grapes, ferments, & bottles • Client is a wholesaler who provides grapes for crushing Custom Crush
  14. 14. Types of Wineries • Solely responsible for storing, blending, and bottling of wine • No fermentation takes place • Requires bond similar to bonded winery Bonded Wine Cellar
  15. 15. Licenses, Permits & Other Paperwork
  16. 16. Licenses, Permits & Other Paperwork Being in the wine business is considered a privilege by the government and this privilege can be revoked. • For this reason, it is highly regulated at the both the state and federal level.
  17. 17. Licenses, Permits & Other Paperwork TTB must approve all applications for wineries before business operations can begin. • Keep in mind the type of operation (e.g., bonded winery, alternating proprietorship) New York has a Tied House Law where a licensed wine retailer cannot also be a manufacturer or wholesaler of alcohol (or vice versa)
  18. 18. Licenses, Permits & Other Paperwork • There is no fee at the federal level to apply for or maintain approval to operate TTB-regulated alcohol and tobacco businesses. • Applications are reviewed by the TTB Wine Applications Unit Specialist • In some cases, it is referred to the TTB Trade Investigations Division (“TID”) Field Office for on-site inspection Required TBB Documentation
  19. 19. Licenses, Permits & Other Paperwork • For operation of bonded winery, wine cellar, or wine bottling house • Form must be sent in duplicate to Director of TBB, National Revenue Center, Alcohol and Tobacco Tax and Trade Bureau • No cost associated with application Application to Establish & Operate Wine Premises
  20. 20. Licenses, Permits & Other Paperwork • Necessary to engage in business of producing or processing wine, or importing or wholesale of alcohol • Application must be sent in duplicate to TBB and Alcohol and Tobacco Tax and Trade Bureau Basic Permit In New York, an Alcohol Permit must be obtained ($38)
  21. 21. Licenses, Permits & Other Paperwork Personnel Questionnaire for TBB • The business name and contact information • Personal and contact information for all business owners, officers, directors, members, partners, etc. • Questions regarding each individual’s arrest, criminal and business background history • Bank references’ and personal references’ contact information
  22. 22. Licenses, Permits & Other Paperwork Wine Bond • Worksheet from TTB used to determine appropriate amount of bond required for specific establishments • Required for every operation that produces or stores untaxed wine • Also need to include • Personal contact information for the obligor or all partners if it is a partnership • Bond coverage and category
  23. 23. Licenses, Permits & Other Paperwork • This form is filled out with the TBB to determine the winery’s impact on the environment in terms of waste and pollution • Application requires descriptions of: • Heat and power to be used and its purpose • Air pollution control equipment proposed • Types of wastes, amount of those wastes, & methods of disposal Environmental Information
  24. 24. Licenses, Permits & Other Paperwork Supplemental Information on Water Quality Consideration • This form is to determine if a certificate or waiver by the State Water Quality Agency is required • Sent to the TBB and the National Revenue Center
  25. 25. Licenses, Permits & Other Paperwork Power of Attorney • This is a signing authority for Corporate and LLC officials • Allows winery to have their appointed attorney represent the principal with the TTB
  26. 26. Licenses, Permits & Other Paperwork • Required before any business activity can take place • Requires information regarding: • Type of dealer • Subclass • Business information Special Tax Registration
  27. 27. Licenses, Permits & Other Paperwork Required in some cases • Alternating Proprietor Agreement or Contract • Lease agreement • Organizational documents for LLC, Corp, or LP
  28. 28. Corporate Formality Paperwork For TBB Type of Entity Documents Requested Corporations or limited liability companies (a) Charter or certificate of existence, incorporation, or organization. (b) Names and addresses of officers, directors, members and managers. (c) Certified extracts of minutes authorizing certain individuals to sign. (d) Statement showing the number of shares/ownership of each class of stock/interest authorized and outstanding, and the voting rights of the respective owners or holders. (e) Statement of interest: Names and addresses of the 10 persons having the largest ownership or other interest and nature and amount of the stockholding or other interest of each, whether the interest appears in the name of the interested party or in the name of another party. The Director, National Revenue Center may request the names of interested persons if the applicant corporation or LLC is wholly owned or controlled by another corporation or LLC.
  29. 29. Corporate Formality Paperwork For TBB Type of Entity Documents Requested Partnerships (a) True copies of articles or partnership agreement, if any, and of the certificate of partnership where required to be filed by local authority. (b) Description of the wine premises. (c) Whether, if the application is not for a bonded wine premises where production of wine will take place, the applicant agrees to having his or her name listed in a TTB publication to be distributed to the public. (d) Any trade names. (e) Any basic permits and bonds (include the present one). (f) If the applicant is a volatile fruit-flavored concentrate operation, he or she must follow additional instructions found at the end of the form. (g) If there are any other operations occurring on the wine premises, these must be disclosed.
  30. 30. Licenses, Permits & Other Paperwork Suggested documents for TBB • Trade name registrations • Diagram of bonded wine premises
  31. 31. New York Paperwork Requirements •Requirements for individuals •Over 21 and •US Citizen, permanent resident, or citizen of country who is able to obtain visa to enter US to engage in trade •Requirements for LLC or Corp •Officer must be over 21 and •US Citizen, permanent resident, or citizen of country who is able to obtain visa to enter US to engage in trade Person who is convicted felon, a police officer, or whose license to sell alcoholic beverages was suspended within last 2 years cannot obtain license
  32. 32. New York Paperwork • Two categories of licenses under ABC: – Retail • On premises – Customer drinks wine at retailer’s location • Off premises – Store where wine is sold • Both types are required to have $1,000.00 bond at all times – Wholesaler/ manufacturer
  33. 33. New York Paperwork • Farm License Winery – Farm grows fruit on premises where wine is produced – Can be sold to dealers, distributors, and individuals who visit the farm
  34. 34. New York Paperwork Wine Tasting Licenses • Anyone licensed to sell wine is permitted to conduct wine tastings on their premises • Winery can conduct tastings of NY labeled wine at establishments that have licenses to sell wine at retail for on-site consumption • Tasting must occur under supervision of winery owner, wholesaler, importer, or agent • Farm wineries can also conduct tastings at the New York State Fair, county fairs, and farmers markets
  35. 35. Where Wine Can Be Sold
  36. 36. Where Wine Can Be Sold License Class Description Wine Product A "wine product" is defined as a beverage containing wine with added juice, flavoring, water, citric acid, sugar and carbon dioxide, not containing more than six percent alcohol by volume (typically referred to as "wine coolers"). Restaurant Wine License for on-premises consumption of wine and beer in a place where food is prepared in such quantities that the sale of wine and beer is not the prime source of revenue. Hotel Wine Allows on-premises sale of wine and beer in both a restaurant in the hotel as well as room service. Club Wine Does NOT mean "nightclub" or "private bar" designed to restrict admission to a specific group of persons, or class of people. See "Club Beer" for definition of "Club." Allows for on-premises sale of wine or beer for club members and guests. The club must appoint an ABC officer.
  37. 37. Where Wine Can Be Sold License Class Description Tavern Wine Allows sale for on-premises consumption of wine and beer. Liquor Store For the sale of liquor and wine (no beer) for consumption off the premises. The only additional items allowed to be sold, such as ice and corkscrews, are listed in the ABC Law. Only one license is allowed per person (corporation, partnership, etc.). Wine Store Not to be confused with the Retail Wine Outlet for a Farm Winery. License to sell WINE ONLY (not liquor or beer) for off-premises consumption, under the same basic conditions as a Liquor Store.
  38. 38. Excise Tax
  39. 39. Excise Tax • Tax paid on purchases made on a specific good, such as wine • Tax increases as alcohol level increases Amount of Alcohol Excise Tax If ½ of 1% to less than 14% alcohol $1.07 If more than 14% but less than 21% alcohol $1.57 If more than 21% but less than 24% alcohol $3.15 Artificially carbonated $3.30 Sparkling $3.40
  40. 40. Excise Tax • Up to $0.90 per gallon on part of the small domestic producer’s annual taxable removals, other than sparkling wine • Theory is to make tax rates for small wineries to what they were before 1991 when tax on wine was increased to $0.90 per gallon Credit for small domestic producers
  41. 41. Wine Labeling
  42. 42. Wine Labeling TTB Pre-Approval Components of a Wine Label Standards of Identity Varietal Labeling Type Designations Geography & Winemaking Organic Labeling
  43. 43. Wine Labeling • TBB Preapproval – Wine labels must be pre-approved by TTB if entering into interstate commerce. • To comply with the TTB, the party responsible for bottling the wine must obtain a Certificate of Label Approval (“COLA”) from the TTB after the approval. • However, if the label is made strictly for sample usage, it does not need a COLA. – The turn-around time for currently processing a label application is 23 days for wines.
  44. 44. Wine Labeling: Components of a Wine Label
  45. 45. Wine Labeling: Components of a Wine Label • Vintage Date – When the grapes were harvested – #1 shows the Vintage Date – If shown 95% of grapes must have been harvested by that year
  46. 46. Wine Labeling: Components of a Wine Label • Estate Bottled – This means that 100% of the grapes used in the wine came from land by that winery (“estate”).
  47. 47. Wine Labeling: Components of a Wine Label • Appellation of Origin or Wine Region – This is included on a label if 75% of the grapes used to make the wine were grown in whatever location is named. – Appellation of Origin provides the geographic origin of where the grapes were grown.
  48. 48. Wine Labeling: Components of a Wine Label • Varietal Designation – This is the grape variety that is used to make the wine – This isn’t required – could just say “red wine” “white wine” “rose wine”
  49. 49. Wine Labeling: Components of a Wine Label • County-of-Origin (“COOL” or “mCOOL”) – Although this might change due to WTO issues, COOL is still the law in the U.S. (as of October 25, 2015) – This is required by the U.S. Customs and Border Protection for containers of imported wine.
  50. 50. Wine Labeling: Components of a Wine Label • Name of Winery or Brand Name – #2 on this Label – Must not mislead the consumer about the age, identity, origin or other character of the wine
  51. 51. Wine Labeling: Components of a Wine Label • Alcohol content – Must include percent by volume of alcohol – Can be labeled “table wine” or “red wine” if content between 7% and 14% – Dessert wine if over 14%
  52. 52. Wine labeling: Components of a Wine Label • Declaration of Sulfites – If there is 10 or more parts per million of sulfur dioxide, this must be indicated if the wine is intended for interstate commerce – #7 on this label
  53. 53. Wine Labeling: Components of a Wine Label • Name and address of Bottler or Importer – Must appear on bottle/container – Can be operating name of winery or trade name – #4 on this label
  54. 54. Wine Labeling: Components of a Wine Label • Net contents – Must be indicated in metric units – #5 on this label
  55. 55. Wine Labeling: Components of a Wine Label • Health Statement – 2 required statements: • “According to the surgeon general, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects” • “Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery, and may cause health problems.” – #7 on this label
  56. 56. Wine Labeling: Standards of Identity With Wine
  57. 57. Wine Labeling: Standards of Identity of Wines Divided into 9 classes to describe taste, production, method & composition of waste
  58. 58. Wine Labeling: Standards of Identity of Wines • Grape wine – This includes table and dessert wine as well and refers to wine produced by the normal alcoholic fermentation of grapes.
  59. 59. Wine Labeling: Standards of Identity of Wines • Sparkling Wine – Includes sparkling wine and champagne – Sparkling wine is grape wine made “sparkling” with carbon dioxide that results directly from the fermentation of the wine within a closed container.
  60. 60. Wine Labeling: Standards of Identity of Wines • Carbonated Grape Wine – This is made effervescent by carbon dioxide other than that resulting from the second fermentation of the wine in a closed container.
  61. 61. Wine Labeling: Standards of Identity of Wines • Citrus Wine – This is similar to grape wine, but uses different fruits. • Fruit Wine – This is similar to grape and citrus wines, but using other fruits, such as berries.
  62. 62. Wine Labeling: Standards of Identity of Wines • Wine from other agricultural products – Uses other agricultural products besides fruit – Ex: raisin wine and sake (rice wine)
  63. 63. Wine Labeling: Standards of Identity of Wines • Aperitif Wine – An example of this is Vermouth; it is a wine with an alcohol content more than 15% and is grape wine with added brandy or other alcohol, and flavoring.
  64. 64. Wine Labeling: Standards of Identity of Wines • Imitation – Wine containing any synthetic materials (such as wine made from mixing water with residue that remains after pressing grapes) and must state “imitation” wine on the bottle.
  65. 65. Wine Labeling: Standards of Identity of Wines • Substandard – “Substandard” wine must be listed as well if it is substandard wine (which is too acidic to meet the standard of other wine).
  66. 66. Wine Labeling: Standards of Identity of Wines • Retsina Wine – This is grape wine with (tree) resin added, usually pine resin. – This wine is popular in Greece
  67. 67. Wine Labeling: Varietal Labeling
  68. 68. Wine Labeling: Varietal Labeling Display of single type of grape used in that wine Can be used rather than stating a class Variety grape name must be approved by TTB Origin of grape must appear on label if using varietal labeling
  69. 69. Wine Labeling: Type Designations of Varietal Significance Type Designation Description Muscadine This is an American wine that derives at least 75% of its volume from Muscadinia rotundifolia grapes. Muscatel This is an American wine that derives its predominant taste, aroma, characteristics and at least 75 percent of its volume from any Muscat grape source. Muscat or Moscato This is American wine that derives at least 75% of its volume from any Muscat grape source. Moscato is the Italian name for Muscat. Scuppernong This is an American wine which derives at least 75% of its volume from bronze Muscadinia rotundifolia grapes. Large variety of Muscadine. Gamay Beaujolais An American wine which derives at least 75% of its volume from Pinot noir grapes, Valdiguié grapes, or a combination of both. 27 CFR § 4.25
  70. 70. Wine Labeling: Geography
  71. 71. Wine Labeling: Geography & Winemaking Generic e.g., Sake, Vermouth Semi- generic e.g., New York Chablis, Napa Valley Burgundy Non- generic Non-generic wines which are not distinctive designations of specific grape wines include American, California, Lake Erie, Napa Valley, New York State, French, and Spanish Wines can be known by region from which they come from and fit into 3 categories
  72. 72. Wine Labeling: “Organic”
  73. 73. Wine Labeling: Organic Labeling • Organic wine is overseen by USDA’s Agriculture Marketing Service’s (“AMS”) National Organic Program (“NOP”) & TBB • NOP regulations are found in 7 CFR §205 – These regulations address the production, processing, handling, labeling, and marketing of organic products.
  74. 74. Wine Labeling: Organic Labeling • Prior approval from USDA required to make organic claim on “principal display panel” and use USDA organic seal • Informational panel can have certified organic ingredients listed – Organic certificate of ingredient must be submitted to TTB
  75. 75. Wine Labeling: Organic Labeling Prior to selling organic alcohol, a manufacturer’s label must be approved through the following steps: • Certifying agent reviews the alcohol label(s) to assess compliance with USDA organic regulations. • Certifying agent stamps/signs label(s), verifying compliance with USDA organic regulations. • TTB permitee (organic operation) completes the Certificate of Label Approval (“COLA”) application. • TTB permitee submits COLA application and label(s) approved by the certifying agent to TTB. No longer requires a copy of the organic certificate.
  76. 76. Wine Labeling: Organic Labeling • However, on the informational panel, certified organic ingredients can be listed as such. • If one does this, he or she must also “obtain a copy of that ingredient’s organic certificate and submit it to TTB. If the wine is not certified organic, there cannot be any claims that the wine is organic on the “principal display panel” and the bottle cannot use the USDA organic seal on the label.
  77. 77. Wine Labeling: Organic Labeling “Made with Organic Grapes” • Means that 100% of the grapes used were organic and this was certified verifying wine meets all organic regulations by USDA • Other ingredients need not be organic
  78. 78. Wine Labeling: Organic Labeling “Organic” “Made with Organic Grapes” Overseen by a certifier? Yes Yes USDA organic seal allowed? Yes No Organic claims allowed in addition to ingredient statement? Yes Yes Non-organic grapes allowed? No No Added sulfites allowed? No Yes but only up to 100 parts per million (and disclosed on label)
  79. 79. Wine Trade
  80. 80. Wine Trade: Importation Permits • Importer’s Basic Permit • Alcohol Dealer Registration Form from TTB • A Certificate of Label Approval (COLA) for each product
  81. 81. Wine Trade: Importation • Wine imported from countries subject to international agreements or treaties must have proper cellar treatment • i.e. conform with US practices & procedures • Wine from other countries require a certification regarding procedures and practices Certification
  82. 82. Wine Trade: Importation Duties, Taxes, and Fees • Wine importers are responsible for federal excise taxes and duties • Rates are set by TTB
  83. 83. Wine Trade: Exportation Permit required for non- bonded wine cellars Taxpaid wine may be exported to foreign country, i.e. this is wine on which tax is already paid All exported wine must have “export” on each container or case of wine
  84. 84. Wine Trade: New York Transporting/Shipping Direct shipping •Wine manufacturers can take orders from state residents and ship direct to consumer •Out-of-state wineries can ship to New Yorkers if they obtain permit and allow New York wineries to ship to their residents Shipping must be through a company with a trucking permit
  85. 85. New York Reciprocity States Arizona California Colorado Connecticut Georgia Hawaii Idaho Illinois Maryland Massachusetts Michigan Missouri Montana New Jersey New Mexico North Carolina Ohio Oregon South Carolina Tennessee Texas Vermont Virginia Washington Wisconsin
  86. 86. Wine Trade: New York Transporting/Shipping Interstate shipment • Anyone licensed to sell wine in any other state and obtains an out-of- state “direct shipper’s license” may ship up to 36 cases of wine produced by that person’s winery per year directly to a New York State resident
  87. 87. Wine Trade: New York Transporting/Shipping Intrastate shipment • Once a license is obtained, a winery or farm winery can ship up to 36 cases of wine per year directly to a New York State resident who is (1) over the age of 21 and (2) as long as it is not for resale. • Label must clearly state: “contains wine- signature of person age 21 or older required for deliver-not for resale” • Shippers must acquire signature of person accepting delivery of above stated requirements
  88. 88. Record Keeping
  89. 89. Record Keeping • Any producer of wine must have records showing the receipt and use of winemaking materials received on the wine premises • The date of receipt, • The quantity received or quantity used or produced (for juice), • The name and address from whom it was received, • That date of use or other disposition of the materials Receipt of Materials and Production
  90. 90. Record Keeping • Additional requirements: • A summary record maintained by tax class, • Documentation of wine production, receipts, removals, blending operations, and losses, and • May contain information about sugar, acid, chemicals, etc. Bulk Still Wine Records
  91. 91. Record Keeping Bottling and Bottled Wine • If wine packaged on site where it was manufactured, must have records of: • The volume of wine received, bottled, and removed, • The COLA serial numbers, and • Results of fill and alcohol tests
  92. 92. Record Keeping Removals and Receipts Records must be kept when wine is removed from bond for consumption or sale, which should be summarized daily to nearest tenth of a gallon Inventory must be kept if wine premise stores taxpaid wine Records must be kept for any unmerchantable taxpaid wine returned to bond Very specific information is required for a transfer in bond
  93. 93. Record Keeping Inventories • Annual reports •Necessary if less than 20,000 gallons of wine are on hand and annual federal excise tax will be filed • Quarterly reports •Necessary if less than 60,000 gallons of wine are on hand and quarterly federal excise tax return will be filed • Monthly reports •Necessary if more than 60,000 gallons of wine on hand or more than $50,000 in federal excise tax paid each year
  94. 94. Miscellaneous Issues
  95. 95. Other New York Laws Wholesaler • Must have an office in New York State with an employee present during regular business hours • Wine must be sold in sealed containers of less than 15 gallons each Franchise • Must submit application to NY Department of Law before offers or sales of franchises are made • Approval of application allows franchise to be effective for one year
  96. 96. Other TTB Regulations • Regulated by TTB, but does not require prior approval • Prohibited practices are: • False or untrue statements • Statements not consistent with label • False or misleading statements disparaging competitor • Misleading guarantees Advertising
  97. 97. Other TTB Regulations Advertising • Items that must be contained in advertisement: • Name and address of the permittee responsible for the advertisement’s publication or broadcast • Class, type, and distinctive designation • Exception: Only name & address required for advertisement of general wine line or all of the wine products of one company
  98. 98. Oh, P.S. – I Wrote a Book! Cari B. Rincker & Patrick B. Dillon, “Field Manual: Legal Guide for New York Farmers & Food Entrepreneurs” (2013) Available at eld-Manual-Legal-Farmers- Entrepreneurs/dp/1484965 191
  99. 99. Please Stay in Touch • Send Me Snail Mail: 535 Fifth Avenue, 4th Floor, New York, NY 10017 • Call Me: (212) 427-2049 (office) • Email Me: • Visit My Website: • Read My Food, Farm & Family Law Blog: • Tweet Me: @CariRincker @RinckerLaw • Facebook Me: • Link to Me: