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.
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.
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.
On Reserve would like to apologize for a previous guest post submitted on Monday of this last week with reference to the Robert Parker Wine Advocate case. The quote allegedly referenced to Robert Parker and the Antonio Galloni lawsuit was misquoted and mislead our readers; the quote originates from an April Fools Day post from On the Wine Trail to Italy and should not be taken seriously. We truly apologize for any confusion and will be more proactive in checking references and citations going forward.
This entry was originally posted on January 13, 2012 and an updated version was recently featured by The Society of Wine & Jurisprudence. Pursuing wine law as a career is still of great interest to me and to many readers of On Reserve. As a result, an updated version of the original post is shared below.
For students and even professionals interested in pursuing wine law, an avid question that often results is how to pursue wine law as a profession or professionally. Originally, when I first started my journey as a wine law researcher, I thought there was only one answer to this question: to practice wine law in a law firm, irrespective of the firm’s size. I also originally believed—quite incorrectly, actually—California to be the only state within the United States in which one could practice wine law. However, as I learned more about the field from both reading literature and speaking with a variety of practitioners, I realized there is a lot more to a professional career in wine law—just as there certainly are a lot of options aside from traditional practice one can pursue with a Juris Doctor. As a result, I thought an entry surveying the options with which I am familiar might be useful to those curious about professional pathways for wine and the law.
The most important distinction I must make before discussing the professional opportunities I know of with respect to wine and law is that wine law and alcohol beverage regulation are different. Wine law pertains exclusively to the legal regulation of the wine industry whereas alcohol beverage regulation usually entails wine, spirits, and beer. While the practice of each is not mutually exclusive, there are many opportunities that focus on one rather than the other. This blog focuses on wine law and, as I assume the majority of its readers are interested in the area of wine and the law, I will discuss the opportunities of which I am aware pertaining to wine and the law (but, because alcohol beverage regulation and wine law are not mutually exclusive, some of the forthcoming ideas may address alcohol beverage opportunities as well).
1. Traditional Firm Practice: There are many firms in the United States that have an alcohol beverage regulation division or a division exclusively focused on wine law. The types of firms vary: there are some large firms with offices located in areas with a prominent wine industry; there are medium-sized or regional firms that have either an alcohol beverage regulation division or a wine law division; there are smaller firms that have one office and focus exclusively on alcohol beverage regulation; and there are sole practitioners who may practice wine law as one of their fields. These firms are located throughout the United States, although a higher concentration tends to be found in California (e.g., San Francisco or Sonoma), Washington (e.g., Portland or Seattle), New York, and Washington, D.C.
2. Consulting: I am somewhat unfamiliar with the consulting area of wine law, but it is certainly an option to consider. There are several businesses that perform consulting matters for compliance, especially with respect to shipping alcohol interstate. Some groups in the wine industry may also provide consulting services for licenses, permits, and labeling. Organizations that fall under this category, to my knowledge, include Compliance Connection and Compliance Service of America.
3. Trade Groups or Non-Profit Organizations: The trade groups and non-profit organizations of the wine industry exist, generally speaking, with the intent to increase communication and help develop the wine industry. The mission of each group is usually different, but generally focuses on promoting wine education among American consumers (as well as international consumers). In addition to educational missions, many trade associations also work closely with legislatures to assist with legal challenges of the wine industry. Some trade groups include WineAmerica (The National Association of American Wineries), The Center for Wine Origins, The Wine Institute, Family Wine Makers of California, and Atlantic Seaboard Wine Association (“ASWA”). Many of these organizations or groups are located in or around the Washington, D.C. area, although there are many found throughout major wine regions of the United States.
4. Research/Academia: Perhaps the most exciting field—at least, in my opinion—of the aforementioned categories is a research or academic pathway for wine and the law. Scholarly writing about wine law is certainly a field that needs much attention and will hopefully grow over time. Currently, there are a lot of law journals with articles published that discuss some legal aspect of the wine industry (i.e., intellectual property, overtones of constitutional law, trade, etc.), but generally speaking, most of these articles are not written by wine law scholars. There are few books that directly deal with legal issues of the wine industry, but there are several books that briefly discuss wine with respect to a broader legal issue (i.e., Bernard O’Connor’s The Law of Geographical Indications). Whereas there are not many schools or institutions that offer classes in wine and the law, the pathway is still a great one and is one I personally feel will grow stronger in years to come. Currently, UC Berkeley School of Law has a Program on Wine Law and Public Policy directed by academic and attorney Richard Mendelson. I believe UC Davis is also in the process of establishing a wine law program, or at least considering one, but I am not certain if that is completely accurate (the school does host a wine law conference each year. See UC Davis Wine Law Conference; see also Review of the UC Davis Wine Law Conference, June 2-4). There is also the highly recommended Wine & Law Program at the Université de Reims Champagne-Ardenne created and directed by Theodore Georgopoulos, which offers both masters degrees and university diplomas in wine law. This summer, the program will focus on comparative aspects of EU and U.S. wine law. There are also a few other attorneys who teach classes or host lectures and seminars. Additionally, there are wine law conferences and seminars hosted by Law Seminars, gathering many academics and professionals. The research and academic pathways are the direction in which I hope to proceed at some point in my career.
5. Winery, retail, or similar: Perhaps one of the most important aspects of practicing wine law is being acquainted with the wine industry. While there are many great resources available to quench the thirst for wine knowledge, gaining actual industry experience is probably the most satisfying and the most significant. Many wine lawyers do have practical experience linked to working for wineries or similar. In practice, a lawyer must know and understand the processes and the procedures of the industry. Considering every state in the United States has at least one winery, seeking an internship or position at a winery should not be difficult. Other options may include working at a wine store or in the wine department of a larger store. Still other ideas include attending tastings or educational wine events. If you live in a big city or a region known for its wine, finding such opportunities is certainly not difficult. Be creative with your learning, but don’t forget that the industry itself is hands on–and your wine education should be, too.
There is a strong possibility that, because I am simply a student and continually learning about the possibilities of pursuing wine law professionally, I overlooked several opportunities. If such exist, please feel free to either leave a comment or send me an e-mail at email@example.com. I am always interested in hearing about alternative pathways, as well as sharing such with others interested in wine and the law.
One final note to make is that wine law, although certainly with strong overtones on the West Coast, is not only concentrated on the East Coast, but also has an international focus, as well as a focus in other regions of the United States. Whereas California is the biggest producer of wine in the States, it is not the only state with lawyers knowledgeable about wine and the law. Each state has its own alcohol beverage control department or agency, which regulate the alcohol beverage industry within the state. This includes issuing licenses and permits in accordance to the state’s alcohol laws, as well as many other tasks. (See, e.g., California Department of Alcoholic Beverage Control, New York State Liquor Authority, and Texas Alcoholic Beverage Commission.) On the state side, there are many different types of alcohol beverage businesses that need to obtain appropriate permits or licenses; sometimes this can be pursued in house, but other times help from outside counsel is acquired. Counsel may be members of a larger firm or even a firm without a designated alcohol beverage regulation division.
My point is simply that alcohol beverage law has overtones in all fifty states of the United States. Whereas the wine section of alcohol beverage law may be more prominent in states with a greater number of vineyards or a stronger wine industry—like California or Washington—legal overtones of the wine industry are not nonexistent in states with fewer vineyards or less involvement in the wine industry. While the strategic approach in those states may be different from the approach in states where wine is a larger part of the agriculture industry, it is still possible to practice as an attorney and oversee issues pertaining to wine and the law in any state.
I am incredibly honored to announce that On Reserve is a finalist for the 2013 Wine Blog Awards in the category “Best Single Subject Wine Blog.” Although I started my blog almost three years ago, this is the first year that On Reserve was nominated for an award and named as a finalist. I am flattered to be part of the industry’s leading blog awards, among many talented and respected wine writers.
Voting for the 2013 awards started today and continues through Friday, May 24th. If you enjoy reading On Reserve, I kindly ask that you consider voting for On Reserve here. (Just press the big, red “VOTE” button.)
Three years passed by and I find myself in love with and amazed by wine law as much as I was when I started On Reserve in June 2010. I am thrilled to pursue wine law not only as the writer of On Reserve, but also in my daily life (as my career). In the years to come, I hope to continue to share insights into legal issues embodying the wine industry as well as my personal journey through the intersections of wine and law.
Finding a bottle of wine with full disclosure of an ingredients list on the label may start to be more common in the U.S. On Reserve recently discussed the idea of full ingredients in a prior post, but recent news indicates that a full ingredients list is starting to appear on several wine labels. California Ridge Vineyards’s 2011 vintage will contain full disclosure of the wine’s ingredients as well as the actions followed to produce the wine. In other words, a food-styled ingredients list is presumed to appear on the labels of Ridge’s 2011 release.
As we discussed several weeks ago, wines containing 7% alcohol by volume or greater are not required to disclose ingredients in full. (However, some disclosure, such as “Contains Sulfites,” is required.) Wines falling into the 7% alcohol by volume category are regulated by TTB, which presently does not require the ingredients list that we see on many FDA-regulated food products (including low volume alcohol wines). Of course, the wine label ingredient list released by Ridge Vineyards contains some differences from what is generally seen on a food label.
While Ridge is not the first winery to release a full ingredients list on its wines, Dave McIntyre speculates that Ridge might have a greater influence over the industry than current full disclosure labels (including those from Bonny Doon, as here and here, and Shinn Estate, as here and here). But maybe instead of focusing on the—intended or unintentional—industry influen
If ingredient lists are to be used on wine labels going forward, perhaps we will start to see some guidance as to when a winemaker can use terms in the ingredient list and exactly what must be disclosed in an ingredients list.
For more information on wine or alcohol law, labeling, FDA or TTB matters, or nutrition fact panels, 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.
This past weekend, I had the pleasure of attending a flag football game on the National Mall here in D.C. We were blessed with some favorable weather on the east coast, allowing me to fully enjoy my spectatorship on the sidelines. In the process, I struck up several conversations with fellow legal scholars, none from which the topic of wine law was absent. One chat in particular paired me with another individual who was familiar with state laws regulating alcohol beverages, and who even wrote a law review article on state laws relating to craft brewers in North Carolina. After our conversation, I started to think fondly about the journey I took some time ago researching my own Note, Australia Corked Its Champagne and So Should We: Enforcing Stricter Protection for Semi-Generic Wines in the United States, covering geographical indications and international wine trade. Perhaps my absolute favorite chapter of my career as a student was researching, drafting, and writing a note exploring the intricacies of the international overtones of wine law and various wine trade agreements. That being said, it is not every day I come across another person who did the same (or similar) during his or her own law school career.
- Justin M. Waggoner, Note, Acquiring a European Taste for Geographical Indications, 33 Brooklyn J. Int’l L. 569 (2008). Justin’s piece is probably one of my favorite showcases of student work related to wine law (and my opinion is not based on the fact that his piece was published by my former law journal). His Note is extremely well written and surveys geographical indications (“GIs”) in relation to food products and alcohol beverages. The piece examines the development of GI protection, the applicable TRIPS provisions, a comparison of the types of GI protection sought by the U.S. and the EU, how the U.S. can benefit from implementing a European system, and the steps to improve or change the current framework.
- Mark Silva, Note, Sour Grapes: The Compromising Effect of the United States’ Failure to Protect Foreign Geographic Indications of Wines, 28 B.C. Int’l & Comp. L. Rev. 197 (2005). Mark’s piece suggests that, despite signing the TRIPS Agreement, the United States is not in compliance with the Agreement. Specifically, Mark argues that the U.S. failed to implement legislation that appropriately protects wine and conforms to the requirements of TRIPS. His piece explores many issues and problems that the current environment may bring about for domestic products in the context of international trade and intellectual property.
- Brian Rose, Comment, No More Whining About Geographical Indications: Assessing the 2005 Agreement Between the United States and the European Community on the Trade in Wine, 29 Hous. J. Int’l L. 731 (2007). Brian’s piece provides a very thorough background of the 2005 bilateral wine trade agreement between the United States and the European Community. The comment explores the implications of the trade agreement between the powers as well as the overarching influence of TRIPS.
- Kevin C. Quigley, Uncorking Granholm: Extending the Nondiscrimination Principle to all Interstate Commerce in Wine, 52 B.C.L. Rev. 1871 (2011). This is a great piece that discusses many of the post-Granholm issues our wine industry faces. Opening with a reference to Chief Justice John Marshall’s love for Madeira, Kevin’s work paints a vibrant picture of Granholm, the commerce clause, and the 21st Amendment.
As lovers of wine and the law, we all know about the renowned 2005 Supreme Court case Granholm v. Heald, as well as several recent wine lawsuits from the early and mid-2000s involving our precious beverage. In the upcoming weeks, On Reserve seeks to focus on additional cases that shaped the legal world of wine as we know it today. Perhaps one of the least recognized wine cases of the early twentieth century stems from the Prohibition time period in America. During that time period, the Eighteenth Amendment prohibited the sale, manufacture, and transportation of intoxicating liquors for beverage purposes within the United States and its territories. See U.S. Const. amend. XVIII, § 1. The exact text of the amendment, by use of the phrase “for beverage purposes,” suggests that intoxicating liquors had a legal purpose aside from consumption, but the amendment fails to define such purposes in subsequent sections. The Volstead Act, the enabling legislation of the Eighteenth Amendment, carved out specific circumstances under which intoxicating liquors were permitted, which included sacramental and medicinal wines that received a license from the federal government. But what, exactly, were the non-beverage purposes for which intoxicating liquors could be used during the Prohibition time period? The Supreme Court case Dumbra v. United States, 268 U.S. 435 (1925), tackles this exact question.
In 1925, a family known as the Dumbras operated their winery under the “sacramental and medicinal” exception to the national prohibition on intoxicatin liquors. The Dumbras operated two distinct businesses in adjoining buildings in New York City on East 16th Street: a grocery store and a winery. In the grocery store, the family sold traditional dry goods and produce; in the winery next door, the Dumbra family produced wine for sacramental purposes. The latter was done with the permission of the federal government (i.e., through a federal permit allowing the Dumbras to manufacture and sell wines for non-beverage purposes).
However, during the era of Prohibition, undercover agents visited the Dumbras’s grocery store pretending to be customers. The agents learned from an anonymous tip that any customer could buy wine from the grocery store for non-sacramental and non-medicinal purposes (i.e., for beverage purposes). The tip said the Dumbras’s store did not ask if the purchaser was using the liquor for non-beverage (or for beverage) purposes. Agents of the federal government obtained a search warrant and went through the properties of both the grocery store and the winery. The warrant allowed the seizure of any intoxicating liquor possessed at the Dumbras’s stores that was in violation of the National Prohibition Act. The agents seized a total of 74 bottles of wine from the grocery store and 50 barrels of wine from the winery. When the agents requested the warrant, however, it was not noted that the Dumbras in fact held a federal permit that allowed them to sell intoxicating liquors for medicinal or sacramental purposes.
The case made its way to the Supreme Court where the Dumbra family claimed that the actions of the agents were an unreasonable search and seizure without probable cause, thus in violation of the Fourth Amendment to the United States Constitution, and sought to quash the search warrant. In totality, the Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV.
The Dumbras argued the warrant was issued erroneously because the Dumbra family held a federal permit allowing the family to produce and sell wine for non-beverage purposes. Additionally, the Dumbras argued that the search warrant was issued to an officer having no authority to receive and execute said warrant. The family asked the Court to quash the warrant for the seizure of the 50 barrels of wine from the winery.
With respect to the authority of the agent to execute the warrant, the Court rejected the Dumbras’s argument. The Court cited Steele v. United States, 267 U.S. 505, reasoning that Steele held that prohibition agents or employees of the United Sates have the power and authority to serve a search warrant with respect to provisions of the Espionage Act and the National Prohibition Act. As a result, the Court reasoned, the warrant for the Dumbras’s store was served by an agent who was authorized to execute said warrant.
The Court next discussed whether the affidavit upon which the search warrant was issued provided sufficient grounds for the warrant to be issued in accordance with the laws of the Constitution and the United States. While the Court recognized that the affidavit did not disclose the fact that the Dumbra family held a federal permit allowing their store to sell wine for non-beverage purposes, the Court questioned whether the permit allowed the Dumbra family to avoid search and seizure of their businesses all together.
In the majority opinion, Justice Stone reasoned that the issuance of a federal permit for non-beverage purposes did not allow the permittee to possess intoxicating liquors for beverages purposes and thus did not afford protections to permittees who used the liquors in violation of the National Prohibition Act. Justice Stone concluded that, when a permittee intends to use its non-beverage permit for beverage purposes—thus violating the permit’s use—and if a warrant is lawfully issued, search and seizure is not unauthorized or unconstitutional. To this extent, the possession of a federal permit for non-beverage purposes was irrelevant.
Justice Stone recognized that the federal agent should have revealed the existence of the federal permit when requesting the issuance of the warrant; however, the underlying illegal acts on behalf of the Dumbra family nullified the existence of the permit. Finally, the sale of the liquor to the federal agent was sufficient to show probable cause when issuing the warrant. The Court affirmed the order of the District Court, agreeing that the motion to quash the search warrant was properly denied by the lower court.