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In July of 2012, Steele Wines, Inc. filed an application to register a mark with the U.S. Patent and Trademark Office asserting use in commerce since May 2012. See 15. U.S.C. § 1051(a). The mark, which is pictured below, features the words, “A Scarlet 2009 Lake County Red Wine” with a woman in Puritan era costume.

A Scarlet Letter 2009 Lake County Wine

After filing, the trademark examining attorney refused to grant registration on the grounds that the mark of Steele Wines, Inc. resembles a previously registered mark “The Scarlet Letter” for “‘wine’ in International Class 33 as to be likely to cause confusion.” In re Steele Wines, Inc., Serial No. 85683619 (August 23, 2013); see 15 U.S.C. § 1052(d). Shortly after the examining attorney refused to grant applicant trademark registration, applicant appealed the refusal.

In its appeal, applicant argued the following:

In re Steele Wines, Inc., supra.

The examining attorney, upon appeal, maintained the following:

  • The channels of trade and consumers are the same;
  • The marks of “A Scarlet” and “The Scarlet Letter” are similar to the extent that both marks are the name of Nathaniel Hawthorne’s The Scarlet Letter, a classic and well-known American novel; and
  • Applicant’s mark, which includes the term “Scarlet” in bold, red lettering and a woman dresses in Puritan-era clothing with the letter “A” inscribed on her chest, connotes Hawthorne’s novel.


The Board examined the abovementioned facts when analyzing the likelihood of confusion issue. “In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods.” Id. citing Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In its analysis, the Board turned to the first du Pont factor regarding similarity of foods, affirming that applicant’s goods are identical to those of the registered mark and thus “must be presumed to travel in the same channels of trade and be sold to the same classes of consumers.” Id.

After confirming the identicalness of the goods, the Board then turned to the second du Pont factor: the comprehensive similarity or dissimilarity of the marks with respect to appearance, sound, connotation, and commercial impression. Id. citing In re E. I. du Pont De Nemours & Co., 177 USPQ at 567. The Board found that the marks were significantly similar as per the following reasons:

  • Both marks contain the term “SCARLET” as a prominent feature;
  • Registrant’s mark contains “THE SCARLET LETTER,” the primary significance of which is Hawthorne’s novel;
  • Applicant’s mark consists of the term “SCARLET” as a prominent word and a “woman dressed in puritan garb with a large, scarlet colored letter ‘A’ affixed to the bodice of her dress, and carrying a swaddled wine bottle in place of a child” along with a second figure dressed in similar clothing;
  • The combination of the images, use of the red color, letter “A,” and the term “SCARLET” in applicant’s mark “unmistakably evoke the novel The Scarlet Letter;” and
  • Applicant’s wording, “2009 Lake County Red Wine,” is descriptive “if not generic” and adds marginally to the overall mark.


Additionally, the Board found that because the applicant’s mark referred to The Scarlet Letter and the registrant’s mark is “The Scarlet Letter,” the marks are highly similar “in connotation and, as a whole, convey highly similar commercial impressions.” Id. Notably, similarity in any one of the du Pont factors is sufficient to support a likelihood of confusion determination. The Board noted that the existence of several third-party registrations was not enough to compel an alternate result and further discussed the differing factors of each referenced mark. Thus, in totality, the Board found “that the similarities in connotation and commercial impression would lead consumers to mistakenly believe that the identical goods identified thereby emanate from a common source.” Id. The Board affirmed the examining attorney’s decision, refusing the registration under Trademark Act Section 2(d).

Photos property of U.S. Patent and Trademark Office Trademark Trial and Appeal Board, In re Steele Wines, Inc., Serial No. 85683619 (August 23, 2013). For another analysis, please see WYHA? Section 2(d) and Faulty Specimen Refusals Sink SCARLET Wine Application.

For more information on wine or alcohol law, labeling, or trademark, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.


On August 22, 2013, TTB announced that the agency will be reviewing its policy on the use of the term “gluten-free” on alcohol beverages that are regulated by TTB. See Use of “Gluten-Free” on TTB-Regulated Alcohol Beverages. This announcement is timely because, as TTB properly highlighted, the United States Food and Drug Administration (“FDA”) recently published its final rule on the term “gluten-free” on food products that fall within FDA’s jurisdiction for labeling. FDA’s final rule on gluten-free for food products was published in the Federal Register, which can be accessed hereSee Food-Labeling; Gluten-Free Labeling of Foods. To comply with FDA’s new rulings, a food product that falls within FDA’s jurisdiction for labeling must contain less than 20 parts per million of gluten in order for the product to be labeled “gluten-free” or a similar phrase. See FDA Establishes Definition of ‘Gluten-Free” for Food Labels.

On its Questions and Answers page, FDA specifically noted that the final rule does not apply to food and beverage products regulated by the United States Department of Agriculture (“USDA”) and the TTB. The agency clarified that, “USDA regulates the labeling of meats, poultry, and certain egg products (FDA regulates the labeling of shell eggs). TTB regulates the labeling of most alcoholic beverages, including all distilled spirits, wines that contain 7 percent or more alcohol by volume, and malted beverages that are made with both malted barley and hops.” Questions and Answers: Gluten-Free Food Labeling Final Rule. In other words, FDA’s newly published regulation on the term “gluten-free” for food products excludes food and beverages products that fall within the labeling jurisdiction of either the USDA or TTB. However, “FDA will continue to work with USDA and TTB on the issue of gluten-free food labeling to harmonize the requirements for foods labeled gluten-free among agencies whenever possible.” Id. (Note: Some wine beverages — e.g., low volume alcohol wines — fall within the jurisdiction of FDA for labeling purposes.)

In its announcement, TTB noted that, while the agency is currently reviewing its policy on “gluten-free” labeling for TTB-regulated alcohol beverages, TTB Ruling 2012‐2, Interim Policy on Gluten Content Statements in the Labeling and Advertising of Wines, Distilled Spirits, and Malt Beverages, is still in effect for alcohol beverage products that are within the agency’s jurisdiction as under the Federal Alcohol Administration Act. See  TTB Ruling 2012‐2, Interim Policy on Gluten Content Statements in the Labeling and Advertising of Wines, Distilled Spirits, and Malt Beverages. For more information, see Craft Brew Alliance One Step Closer to Being Able to Label Omission Beer as “Gluten-Free.”

For more information on wine or alcohol law, labeling, or using claims on alcohol labels, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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Continuing Legal Education (“CLE”) International is hosting its 18th annual national conference on wine, beer, and spirits law. “For the past 17 years, this program has brought together the premier in-house counsel, private attorneys, regulators, retailers, wholesalers, distributors, vintners, and others involved in the alcohol beverage industry. This year will be no exception.” See  CLE International’s 18th Annual National Conference on Wine, Beer & Spirits Law. The conference, which will take place September 19, 2013 through September 20, 2013  at the Omni Hotel in San Diego, will feature topics including history of beverage licensing, liquor control, a model ABC act, consumer promotions, cider, distribution, and more. The topic lineup and schedule can be viewed at CLE International’s 18th Annual National Conference on Wine, Beer & Spirits Law.

The 18th Annual Conference is co-chaired by James M. Seff, Esq. of Pillsbury Law and Marc E. Sorini, Esq. of McDermott Will & Emery LLP. In addition, the conference faculty include many alcohol beverage attorneys and keynote speaker is Tom Stolpman, esq., attorney at Stolpman, Krissman, Elber & Silver and president of Los Olivos-based vineyard Stolpman Vineyards. Up to 12 hours of MCLE credit can be earned, including one hour of ethics or substance abuse training credit. For more information on signing up and tuition, please visit CLE International’s 18th Annual National Conference on Wine, Beer & Spirits Law.

The following program postcard is provided by Kerry Mason, the Program Attorney for CLE International (brochure property of CLE International):

wine beer spirits conference San Diego

Wine Beer Spirits Law Conference



Revisited: Granholm v. Heald and the Wine Industry

This blog entry was originally posted on August 7, 2010, five years after the Supreme Court decided a major case impacting the wine industry. The decision Granholm v. Heald remains important to the wine industry and provides great context for the types of legal issues the American wine industry faces on a day-to-day basis. Because I believe this case to have such a strong influence on the American wine industry, I think it is worth revisiting. Below please find a summary of the background pre-Granholm, a summary of the case, and the legal environment post-Granholm.

General Information on Granholm

In the 2005 opinion of Granholm v. Heald, the Supreme Court ruled in a 5–4 decision that state laws allowing in-state wineries to make direct sales to customers but effectively authorizing out-of-state wineries to make sales only through wholesalers at a greater expense are unconstitutional. The Court reasoned that these laws discriminated against interstate commerce, thus violating the Commerce Clause of the United States Constitution (Art. I, § 8, cl. 3), and were not defensible under the Section 2 of the 21st Amendment. It was further acknowledged that “the constitutional authority of the state to regulate the importation of intoxicating liquors was limited by the requirement under U.S. Const. art. I, § 8, cl. 3, that such regulation could not discriminate against the out-of-state wineries in favor of in-state wineries.” Granholm v. Heald, 544 U.S. 460 (2005). Granholm still serves as good law today for state regulations pertaining to wine sales amongst interstate and intrastate wineries, as well as its constitutionality discussion, and is one of the most recent cases entailing wine laws to reach the Supreme Court.

Legal Environment Pre-Granholm

The nexus of Granholm spans from two distinct and conflicting district court rulings. Two states, New York and Michigan, had laws that prohibited or effectively prevented out-of-state wineries from selling products directly to consumers. Michigan’s law, which was facially discriminatory, allowed in-state wineries to ship directly to in-state consumers, subject to licensing requirements, but all out-of-state wine products were required to be sold from in-state wholesalers before said products could be sold to consumers. New York’s law was more regulatory: it required (1) all wine to be sold through a licensee fully accountable to the state, (2) in-state producers, in order to ship directly to consumers, to obtain an applicable license, and (3) out-of-state producers, in order to become a licensee and gain direct shipment advantages, to establish an in-state distribution operation (consisting of a branch office and warehouse, which posed to be costly, especially for smaller wineries). Moreover, the New York law prohibited out-of-state wineries from obtaining a “farm winery” license, which provided for the most direct manner of shipment to consumers and were not permitted to distribute their wines through direct shipment of applicable in-state licensees.

During this time period, the majority of wine distributors opposed allowing direct shipment by wineries, asserting that even a small winery’s direct shipment was a threat to distributors. Many distributors believed their line in the distribution process served as a barricade against even the remote possibility for criminal influences in the liquor industry and/or the illegal sales of liquor to minors over the Internet. Remember that much of the direct sales, especially from out-of-state wineries, were conducted over the Internet during a time period of global technological expansion. (In fact, from 1994 to 1999, the amount of consumer spending on direct wine sales doubles and reached about $500 million, or about 3% of all wine sales.) (Federal Trade Commission.) In addition, that time period saw a dramatic growth in the number of small wineries throughout the United States, and direct shipping via the Internet was viewed as a means for such small wineries to increase their sales and shipments.

Essentially, a group of Michigan residents brought suit against state officials in federal district court, alleging that Michigan’s direct-shipment laws discriminated against interstate commerce and violated Article I, § 8, cl. 3 of the United States Constitution. The district court granted summary judgment to the defendants, but on appeal, the Sixth Circuit reversed, remanded, and concluded that the 21st Amendment was not grounds for defense of the laws and Michigan’s regulations were unconstitutional because the state did not prove that it could not meet its procedural objectives through nondiscriminatory manners.

The story for New York is quite the contrary. Out-of-state wineries and several New York consumers filed suit against state officials in New York federal court, also alleging that the New York laws violated the commerce clause. The district court granted plaintiffs summary judgment, but on appeal, the United States Court of Appeals for the Second Circuit reversed and held that New York’s laws fell within legal scope of the 21st Amendment.

The United States Supreme Court, in 2005, granted certiorari to both of these cases. In its decision, it affirmed the judgment of the Sixth Circuit and reversed that of the Second Circuit.

Supreme Court’s Analysis in Granholm

Justice Kennedy delivered the majority opinion of Granholm, asserting that the direct-shipment laws of both New York and Michigan violated the Commerce Clause because neither state substantiated that its objectives could not be obtained by other nondiscriminatory mechanisms and that Section 2 of the 21st Amendment was not a justifiable ground to regulate interstate commerce in a discriminatory manner, giving preferential treatment to in-state wineries.

In his analysis, Kennedy greatly relied on the history of the Commerce Clause, the text of which is cited below:

“[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;” U.S. Const. art. I, § 8, cl. 3.

Historically, this clause has been read to disallow states, except in the narrowest of circumstances, from discriminating against interstate commerce. In other words, a law in one state that denotes preferential treatment to the business of the state and grants subordinate power or substantial burdens to outside states, without proper justification proving that these objectives could not be achieved in another non-discriminatory fashion, would most likely be declared unconstitutional under U.S. Const. art. I, § 8, cl. 3. Kennedy justified that the systematic laws of both New York and Michigan were “obvious” in their discrimination and that the results “could effectively bar small wineries” from those markets. 544 U.S. at 474. Although New York’s laws were not outright discriminatory, through its analysis of the culmination of the state’s law, the Court “[had] no difficulty concluding that New York, like Michigan, discriminates against interstate commerce through its direct-shipping laws.” 544 U.S. at 476.

To contend this, both states argued that their statutes were constitutional under Section 2 of the 21st Amendment, affirming that the Amendment gave the states the authority to discriminate against out-of-state goods. The text of Section 2 of the 21st Amendment reads as follows:

“The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors in violation of the laws thereof, is hereby prohibited.” U.S. Const. amend. XXI, § 2.

Through another historical analysis of the 21st Amendment, the Court visited the purposes of both the Wilson Act (1890), which granted the states the power to regulate imported liquor “to the same extent and in the same matter” as domestic liquor but did not allow states to discriminate against out-of-state liquor, and the Webb-Kenyon Act (1913), which essentially provided federal support to prohibition endeavors to curb liquor consumption and extended aims of the Wilson Act.

In rejecting the states’ arguments, the Court explained that “the aim of the Twenty-First Amendment was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they had not enjoyed at any earlier time.” 544 U.S. at 484–485. The Court recognized that, although the states do have broad power under section 2 of the 21st Amendment, “this power, however, does not allow States to ban, or severely, limit the direct shipment of out-of-state wine while simultaneously authorizing direct shipment by in-state producer.” 544 U.S. at 493.

The states also argued that, by allowing direct shipment of wine by out-of-state wineries, their 10th Amendment “policing powers” were severely limited and that minors with access to credit cards and the Internet could purchase an illegal substance through direct shipment. The Court rejected this argument, affirmed that, “the States provide little evidence that the purchase of wine over the Internet by minors is a problem. Indeed, there is some evidence to the contrary. A recent study by the staff of the FTC found that 26 States currently allowing direct shipment report no problems with minors’ increased access to wine.” 544 U.S. at 490. The Court also reasoned that, if credit were to be attributed to the states’ argument, that the discriminatory laws against interstate commerce would still not be justifiable. “As the wineries point out, minors are just as likely to order wine from in-state producers as from out-of-state ones . . . . In addition, the States can take less restrictive steps to minimize the risk that minors will order wine by mail.” 544 U.S. 490–491.

Finally, the Court rejected New York’s argument that tax-collection was a justifiable ground for its direct-shipment regulations. Kennedy’s opinion reasons that this is not illusory, but reiterates that such objectives can be attained through other non-discriminatory measures.

What is the Result of Granholm for the Wine Industry?

Essentially, the legal result of Granholm is this: a state’s regulation that permits in-state wineries to directly ship to consumers but restricts or prohibits out-of-state wineries from direct shipments violates the Commerce Clause of the United States Constitution and is not authorized by Section 2 of the 21st Amendment.

What does this mean to wineries? Manifestly, state laws must comply with the Granholm ruling. However, not all state direct-shipment regulations are identical and certainly do not procure matching ramifications. However, after Granholm, direct shipment laws must apply identically to both in-state and out-of-state producers such that if state laws allow direct shipment to one type of producer, the same remittance must be given to the other. Post-Granholm, some states allow a relatively low volume of direct shipment to consumers whereas other state laws allow direct shipment to consumers only if the wine was purchased in person at the winery. Other states have adjusted their laws to accommodate smaller wineries and allow direct shipment to wineries that produce under a certain amount of gallons of wine per year. States are also allowed to completely ban direct shipment, and essentially mandate wholesale distribution, as long as the laws apply equally to both in-state and out-of-state producers. Regardless of its effect, Granholm incorporates an important postulate: know your direct-shipment laws.

For more information, access the full opinion at Granholm v. Heald or listen to the opinion at Granholm v. Heald.

For more information on wine or alcohol law, direct shipping, or three-tier distribution, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.


On June 26, 2013, the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (“USPTO”) found a likelihood of confusion between the marks JOEL GOTT and GOTT LIGHT. Rehoboth Von Gott, Inc. filed an application with USPTO to register the mark GOTT LIGHT for nutritionally fortified water (and other similarly described bottled waters). See Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc. Shortly after filing for registration, Joel Gott Wines, LLC opposed the registration of the mark GOTT LIGHT under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of prior use and likelihood of confusion of previously registered marks GOTT and JOEL GOTT. Joel Gott Wines, LLC also argued that Rehoboth Von Gott, Inc.’s mark was descriptive as per Section 2(e)(1) of the Trademark Act and that the application to register GOTT LIGHT is void ab initio because Rehoboth Von Gott, Inc. lacked a bona fide intent to use the mark on the specified goods at the time of filing. In its answer, Rehoboth Von Gott, Inc. denied the 2(d) and 2(e)(1) allegations and, in the company’s amended answer, denied the lack of bona fide intent to use the mark.

While the Board discussed issues related to evidentiary matters, standing, and priority, of significant interest is the Board’s analysis of factors relevant to the likelihood of confusion claim. First, the Board compared the marks in entireties with respect to “sound, appearance, connotation and commercial impression.”  See Joel Gott Wines, LLC v. Rehoboth von Gott, Inc (citing Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005)). The Board noted that the key factor is that the marks must be “sufficiently similar” in their overall commercial impression such as to render confusion as to the source of the goods. Id. The Board found that GOTT and GOTT LIGHT and JOEL GOTT and GOTT LIGHT are similar in “sound, meaning, and overall commercial impression.” See Joel Gott Wines, LLC v. Rehoboth von Gott, Inc. In its analysis, the Board observed that the mark GOTT LIGHT contained the word “Gott” capitalized in font size significantly greater than that of the word “light,” which appeared in lower-case letters. Additionally, the Board noted that the word “light” in GOTT LIGHT acted as a modifying word, indicating the source of the goods was lower in calorie amount or contained lower amounts of minerals and by-products, thus rendering it to be “subordinate” part of the mark and “less likely to be perceived as a distinguishing element of the mark.” Id.

Next the Board analyzed the similarity or dissimilarity of the marks with respect to the relatedness of the goods, trade channels, and classes of purchasers. Noting that the issue was whether consumers would be confused as to the source of the goods, the Board explained that consumers, “upon encountering the goods under similar marks, [would be likely to assume] that the goods originate from, are sponsored or authorized by, or are otherwise connected to the same source.” Id. From marketplace evidence submitted by Joel Gott Wines, LLC, the Board discussed the commonality between bottled water and wine and the clear ability to purchase both types of goods from the same or similar marketplace (e.g., from a winery tasting room where both products contained the same mark, supermarket, etc.). As a result, the Board reasoned that the third-party registration examples served to indicate that the marks can originate from a single source under the same mark. Through additional evidence—such as the ability to purchase both goods from the same areas of retail outlets or copies of menus indicating restaurants offered wine and water for sale in the same menu section—submitted by Joel Gott Wines, LLC, the Board agreed that Joel Gott Wines, LLC provided sufficient information that the goods are “related products sold through the same trade channels to the same classes of customers.” Id.

In light of the above analysis, and after balancing all of the applicable factors, the Board sustained the opposition of Joel Gott Wines, LLC and came the conclusion it was thus not necessary to reach the alternative ground for opposition (i.e., whether Rehoboth Von Gott, Inc. had a bona fine intent to use the mark at the time the company filed its registration application).

For an additional, and more in depth, discussion, visit Precedential No. 26: Finding Wine and Water Related, TTAB Sustains 2(d) Opposition.

For more information on wine or alcohol law, labeling, or trademark, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.


On July 16, 2013, the Director General of the Tax Agency of Japan announced the designation of Yamanashi as the first Japanese geographical indication (“GI”) for wine. “To be allowed to carry the name of Yamanashi, wine needs to use only limited kinds of grape from Yamanashi, including Koshu and Yamanashi Muscat Bailey A, and be brewed and bottled in the prefecture.” See Yamanashi Wines Seek Regional Cachet. To qualify for the Yamanashi GI, 100% of the grapes must be grown within the Yamanashi Prefecture of Japan.

The Yamanashi Prefecture, which is located in the Chūbu region of the main island of Honshu, has produced the Koshu varietal for the last 1,000 years. While Japan is traditionally known for sake, a type of rice wine, grape wine is still produced in Japan. The Yamanashi Prefecture is said to produce 40% of Japan’s total wine and contains 670 hectares of vineyards. See Quality Yamanashi Wine

Many hope this formal designation will help promote awareness of wines from Yamanashi throughout the world. Specifically, the Yamanashi Prefecture Wine Manufacturers’ Association based in Koshu seeks to use the designation to boost the recognition of Yamanashi in Japan and abroad. See, e.g., Local Japan: Case Studies in Place Promotion: Using Regional Products and PR to Revitalize Local Areas (noting that the Yamanashi Prefectural Government is hoping to bring its wines to global markets through joint ventures abroad).

For more information on wine or alcohol law, labeling, AVAs, or geographical indications, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.


One of the biggest challenges for small wineries in the United States is developing a market for their products. Small wineries often have a difficult time getting conventional retail shelf space because they do not produce enough volume or products to make it cost effective for wholesalers to carry their wines.[1] Further, due to the continued prevalence of the three-tier system, which prohibits producers from selling directly to retailers, small wineries in many states are disallowed from selling directly to retailers[2] like liquor stores, wine shops and grocery stores.[3] Thus, small producers face substantial challenges in getting their wines to consumers.

While many states have loosened restrictions on small producers by allowing direct shipping to consumers[4] and off-site sales at the winery, small wineries still face an uphill battle in cultivating a market because consumers are less likely to be initially exposed to their wines. Without knowing anything about a winery and never having seen any of its products, consumers are much less likely to find a small producer online and make a purchase or take a trip to the winery for an off-site sale.

However, the state of Michigan has recently given its small wineries a new, potentially powerful, tool in developing consumer markets for their wines. On July 2nd, Governor Rick Snyder signed Senate Bill 79, which will allow small wineries to make sales and host tastings at local farmers’ markets.[5] Under the new law, qualifying small wine makers will be allowed to purchase a license that enables them to serve up to three 2-ounce servings per customer at farmers’ markets around the state.[6] The licenses, issued by a state commission, will cost $25 for each farmers’ market location.[7] In order to qualify for a license, the wine maker must manufacture or bottle no more than 5,000 gallons of wine per year.[8] The policy behind the new legislation is simple: by allowing smaller producers to directly engage consumers at farmers markets, small wineries will be able to both generate immediate sales and build a market for their wines that will drive sales online and off-site sales at the winery.

In passing this legislation, Michigan will be joining a number of states that allow for sales at farmers’ markets. [9] However, Michigan’s approach goes one step further by allowing consumers to actually taste the wines before making a $20 or $30 investment in a bottle. Currently, tastings at farmers’ markets is only allowed in a limited number of states, including California, Maryland, Massachusetts, North Carolina, and Virginian.[10] However, later this month, Washington State will also begin allowing farmers’ market tastings once legislation[11] enacted in May goes into effect.

[1] See Institute for Justice, Challenging Minnesota’s Advertising and Internet Speech Ban That Bottles Up Wineries and Consumers, http://www.ij.org/minnesota-winery-internet-speech-background. Cf. Missouri Wine and Grape Board, The Economic Impact of Wine and Grapes in Missouri 5 (2010), available at http://gwi.missouri.edu/publications/mo-winery-impact.pdf (“[D]istributor support for . . . wineries is unusual in the midwest, where many producers have found distributors’ resistant to supporting their product.”).

[2] See Indiana Alcohol and Tax Commission,  Direct Wine Shipment Report 2 (2011), available at http://www.in.gov/legislative/igareports/agency/reports/ALTOB01.pdf.

[3] Of course, in many states including Alaska, Colorado, Delaware, Kansas, Tennessee, Minnesota, Oklahoma, Pennsylvania, North Dakota, Utah, Connecticut, Kentucky, Mississippi, New York, and Wyoming, grocery stores are prohibited from selling wine all together. Bradley Rickard, Marco Costanigro and Teevrat Garg, The Availability of Beer, Wine, and Spirits in Grocery Stores 24 (Am. Ass’n of Wine Econ., Working Paper No. 95, Dec. 2011), available at http://www.wine-economics.org/workingpapers/AAWE_WP95.pdf.

[4] This is, in large part, thanks to the Supreme Court’s decision holding that disallowing out-of-state wineries to directly ship to in-state consumers while allowing in-state wineries to do so is unconstitutional. See Granholm v. Heald, 544 U.S. 460 (2005).

[5] See S.B. 79, 97th Leg., Reg. Sess. (Mi. 2013) (enacted), available at http://www.legislature.mi.gov/documents/2013-2014/billenrolled/Senate/pdf/2013-SNB-0079.pdf.

[6] Id. at Sec. 415 (7).

[7] Id. at Sec. 415 (2).

[8] Id. at Sec. 415 (12)(d).

[9] See, e.g. 28-A Me. Rev. Stat.tit. 28-A, § 1366 (2012) (Maine); Ky. Rev. Stat. Ann. § 243.155 (2012) (Kentucky); Conn. Gen. Stat. § 30-37o (2012) (Connecticut);

[10] See, Cal. Bus. & Prof. Code § 23399.45 (California); Md. Code. Ann., art. 2B § 2-101 (Maryland); Mass. Gen. Laws ch. 138, § 15F (Massachusetts); N.C. Gen. Stat. § 18B-1114.1 (2013) (North Carolina); Or. Rev. Stat. § 471.223 (2012) (Oregon); 3 Va. Admin. Code. § 5-70-160 (2013) (Virgina).

[11] See S.B. 5674, 63rd Leg., Reg. Sess. (Wa. 2013) (enacted), available at http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/Session%20Laws/Senate/5674.SL.pdf. Prior to Washington’s new law, the state had a small-scale test pilot program for allowing tastings, which the current legislation seeks to expand.


During my last semester of college, I was fortunate to take a restaurant management class that acquainted me with a completely new area of law. My professor assigned an article from The New York Times about the alleged fraudulent production of Brunello di Montalcino using grapes other than the Sangiovese varietal. (Read more about my introduction to wine and the law here.) One year later, I was blessed with the opportunity to travel to Montalcino during a trip to the Emilia-Romagna region. The visit was as much inspirational as it was breathtaking and alluring. After returning home, and while feeding on memories from my trip, I decided to write about the legal aspects of the wine industry for a law review article. For me, Montalcino will always symbolize a personal inception to wine and law. 

IMG_8031-1024x768The above story is why, to this day, I still feel particularly captivated when I hear about Montalcino—especially in relation to wine law. 
Recently, some new developments to the above mentioned Brunello scandal have emerged. In May of this year, a Siena court acquitted Argiano, an Italian wine producer, of charges brought against the company for alleged adulteration of wine. The Giudice del Tribunale di Siena reasoned that there was “no evidence” to support the claim that the Italian wine producer adulterated its wines labeled as 100% Sangiovese with subordinate varietals. See Argiano Acquitted in ‘Brunellogate’ Trial. According to Vias, the winery’s U.S. importer, Argiano is “the only winery in Montalcino to be prosecuted, appeal, and be absolved of all charges.” Id. 
Argiano was one of several wine producers in the Montalcino region of Italy who were accused of using grapes other than 100% Sangiovese in DOCG wines in 2008. (According to claims brought against several wineries, producers supposedly used inferior varietals including Lancellota, Merlot, and Cabernet Sauvignon. See Top 10 Wine Scandals: Caught Red Handed.) Seven wineries, including Argiano, were investigated by the Italian Treasury Department in 2007-2009 in response to the alleged fraudulent production of wine in the Montalcino region. See Brunello Scandal: Argiano Acquitted of Adulterationsee also Argiano Acquitted of All Charges in Brunello Wine Scandal. The acquittal comes as great news to Argiano, which was recently sold to a group of Brazilian investors. See Montalcino Producer Jubilant After Brunellogate Acquittal.
Photograph property of Lindsey A. Zahn.
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Proposed Standard of Identity for Canadian Icewine

On June 15, 2013, the Canadian Food Inspection Agency released proposed regulations to create Icewine Regulations (of the Canada Agricultural Products Act) and Consumer Packaging and Labeling Regulations (of the Consumer Packaging and Labeling Act). See New Standard Will Help Open Markets for Canada’s Iconic Icewine. The proposed icewine regulations create “a Standard of Identity for icewine as new regulations under the Canada Agricultural Products Act (CAPA)” while the amendments to the Consumer Packaging and Label Act change current regulations to permit Single Field of Vision (“SFV”) labeling for required information on wine containers and make additional changes to the Food and Drug Regulations (FDR) and the CPLR. Canada Gazette, Vol. 147, No. 24, June 15, 2013.

As a founding member of the World Wine Trade Group (“WWTG”), Canada seeks to unify labeling standards among major wine powers to promote international wine trade. (To an extent, the modification of Canada’s legislation is similar to the amendments made by TTB to alcohol by volume percentage requirements on wine labels as per the WWTG Agreement on Requirements for Wine Labeling.) The SFV and additional changes incorporated in the Consumer Packaging and Label Act reflects the outcome the WWTG Agreement. Of particular interest to the Canadian wine industry is the protection of icewine through both domestic and international agreements. As one of the world’s largest producers of icewine, Canada is often victim to counterfeit icewines both domestically and internationally; it is the hope of the Canadian wine industry that the new legislation will curb some of the counterfeit production. See Landmark Canadian Icewine Legislation Comes into Force.
The proposed Canadian regulations for icewine now define icewine (including wines labeled as ice wine or ice-wine) as wine “made exclusively from grapes naturally frozen on the vine.” Icewine Regulations, Standard, Canada Gazette, Vol. 147, No. 24, June 15, 2013 (emphasis added). In addition, the proposed regulations prohibit the labeling of any wine product as “icewine” or similar unless that product meets the pre-defined standards and an entity “acting under the authority of the law . . . has determined that the product is wine that was made exclusively from grapes naturally frozen on the vine.” Icewine Regulations, Labelling, Canada Gazette, Vol. 147, No. 24, June 15, 2013.
Part 1, Article 12 of the WWTG Agreement allows parties to label wine products as icewine or similar “only if the wine is made exclusively from grapes naturally frozen on the vine.” WWTG Agreement, Part 1, Article 12. The proposed regulations issued by the Canadian Food Inspection Agency put Canadian law in compliance with the WWTG Agreement and the Agreement’s definitions of icewine by creating a corresponding standard of identity for icewine. In addition, the Agency believes amending the domestic legislation will provide Canada a greater ability to “control icewine labelling in Canada and have the regulatory reference when seeking collaboration from other countries in stopping sales of icewine not meeting the international standard,” in an attempt to create a standard for quality icewine. Canada Gazette, Vol. 147, No. 24, June 15, 2013. The comment period for the proposed icewine regulations will run through August 29, 2013.
On June 10, 2013, TTB published a final rule in the Federal Register amending the mandatory label information requirements for wine labels. The final rule allows the alcohol by volume (“ABV”) percentage to appear on other labels affixed to a wine container without appearing on the brand label. Previously, the regulations for wine labels required the ABV to appear on the wine’s brand label (along with other required elements, such as the class/type and brand name). See 21 CFR § 4.32. This change will allow for greater flexibility in wine labeling and is effective starting August 9, 2013. Note that this change currently only applies to wine labels.
This alteration in labeling also complies with the Agreement on Requirements for Wine Labeling by the World Wide Trade Group (“WWTG”), which was signed in Canberra, Australia on January 23, 2007 and entered into force on July 1, 2010. The WWTG established a wine labeling agreement to promote and facilitate the international trade of wine with the hopes of “minimiz[ing] unnecessary labeling-related trade barriers.” Agreement on Requirements for Wine Labeling. Effectively, the parties to the Agreement believed that common labeling requirements would allow vintners to use the same wine label when shipping wine products to multiple countries.
While negotiating, the parties to the Agreement realized that most countries mandate four elements on wine labels. The four items, collectively referred to as “Common Mandatory Information,” are: (1) the country of the product’s origin, (2) product name, (3) net contents, and (4) actual alcohol content (or the ABV). See Article 11 of the Agreement on Requirements for Wine Labeling. The Agreement also incorporates the idea of a “Single Field of Vision” approach, which stresses that if all four of the Common Mandatory Information elements are visible at the same time (excluding the base and cap of the container), the label will meet the placement requirements of each party to the Agreement.
TTB reviewed its wine labeling regulations and found its ABV placement requirement was the only inconsistency between TTB wine regulations and the “Common Mandatory Information” requirements. As a result, TTB issued a notice of proposed rulemaking in 2007 to change this regulation and, later, a finalized rule. While the 2007 proposed rule called for a change to wine, beer and spirits labeling regulations, the final rule only changes the regulations for wine labels.
For wines with previously issued COLAs, “TTB’s position is that a new COLA is not required if the only change made to a wine label appearing on a previously issued COLA is the moving of the alcohol content information to a label other than the brand label.” See 78 FR 34567. This is consistent with other recent allowable changes to approved labels, a guideline for which TTB issued and On Reserve wrote about several months ago, suggesting the agency may be attempting to reduce the turnaround time for label approvals as well as decrease both internal and external costs.

For more information on wine or alcohol law, labeling, TTB, or advertising, please contact Lindsey Zahn.

DISCLAIMER: This blog post is for general information purposes only, is not intended to constitute legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.

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