Tariffs and the Industry: Impacts of the Trade War on Wine, Beer & Spirits

2 wine corks fighting

By: Jessica Spengler

Throughout 2018, the Trump administration’s implementation of tariffs on several foreign goods, and the retaliatory tariffs that followed suit have confused markets and worried many businesses. The alcohol industry—wine, beer, spirits and those who support them—have all been affected in some way by these tariffs, or expect to be in 2019 if they continue. With the news on tariffs changing almost monthly, it can be hard to keep up, which causes further insecurity for the industry.

Timeline of Events

  Trade tensions began in January 2018 when the Trump administration imposed tariffs on solar cells and washing machines after a report stating that imports were hurting the domestic U.S. market in those businesses.

  On March 8, 2018, President Trump announced a 25 percent tariff on imported steel and a 10 percent tariff on imported aluminum to take effect on March 23. At this time, Canada and Mexico were granted an exemption pending talks to renegotiate NAFTA. After threats from the EU to impose retaliatory tariffs, the administration allowed exemptions for the EU, South Korea, Brazil, Argentina, and Australia through May 1, which would eventually extend to June 1.

  On April 2, China imposed tariffs ranging from 15-25 percent on various U.S. products, including fruit, wine, whiskey, and other products totaling approximately 3 billion U.S. dollars.

  On June 1, exemptions from the steel and aluminum tariffs ended for the EU, Canada and Mexico. Argentina and Brazil struck deals with the Trump administration limiting the quantities of steel and aluminum they ship to the U.S., while Australia negotiated for no trade restrictions.

  In retaliation, on June 22, the EU imposed tariffs on $3.2 billion of U.S. products, including a 25 percent tariff on Bourbon and whiskey. Then, on July 1, Canada also imposed retaliatory tariffs on $12.8 billion in U.S. products including 25 percent on steel, and 10 percent on aluminum and whiskey. In addition, Mexico implemented a 25 percent tariff on Tennessee whiskey.

  After talks with China failed in May, the first phase of the trade war occurs in mid-June, with the Trump administration announcing it will enact a 25 percent tariff on $50 billion more in Chinese goods. Beijing retaliated, placing more tariffs on $50 billion in U.S. products.

  In September, President Trump announced another 10 percent tariff on $200 billion more in Chinese products, that he planned to increase to 25 percent at the beginning of 2019. These tariffs impacted manufacturers of fermentation tanks outside of the U.S.

  On September 30, a compromised was made between the U.S. and Canada for an updated NAFTA. Mexico and the U.S. had already come to an agreement by this point, and so the new agreement, called by the Trump administration the United States-Mexico-Canada Agreement, or USMCA, would be signed by the three leaders at the end of November. Mexican and Canadian governments were both hopeful that tariffs would end before signing.

  In November, President Trump and President Xi Jinping of China both showed interest in coming to a compromise, ending a tense few months of escalation.

  On November 30, 2018, President Trump, Canadian Prime Minister Justin Trudeau and Mexican President Enrique Peña Nieto signed the USMCA in Buenos Aires on the first day of the G-20 summit in Buenos Aires without any agreement to end the tariffs. At the time of publication, talks to alleviate tariffs with Mexico and Canada but implement quotas are in progress, but no deal has been reached.

  On December 2, 2018, at a dinner between President Trump and President Xi, they agreed to a truce, putting a stop to any further tariffs for 90 days to give the two countries time to come to an agreement. At the time of publication, Robert Lighthizer is leading negotiations, but no deal has yet been made.

Effects to the U.S. Wine, Beer, and Spirits Industries

Wine

  China has been a growing market for American wine for nearly 20 years. The market has increased almost 1200 percent since 2001 despite an already steep tax of 54 percent on imported wine. China’s retaliatory tariffs threatened to stop that growth in its tracks if the tariffs continue. After two rounds of tariffs on wine, the first in April at 15 percent and the second in September at 10 percent, the current taxes and tariffs for U.S. wine going into China is 79 percent. That percentage is quite unsettling for winemakers who have a market stake in China, particularly if no agreement is reached and the current truce ends.

  Igor Sill, owner of Sill Family Vineyards, told The Grapevine Magazine in an email: “Yes, I’ve been very concerned over the latest exchanges between U.S. and China trade given that we are already being penalized with a 15 percent tariff. The newest retaliation from China to our steel and aluminum trade policies will add 25 percent to that existing tariff, essentially pricing me out of the China marketplace. It’s a real shame, frustration, and disappointment as we have nothing to do with manufacturing and construction materials, but yet are hit with this inability to compete in China’s luxury wine sector against other imported wines. I really pray that the trade dispute with China is resolved equitably and quickly. At $185 per bottle, my Chinese customer would need to pay some $275 per bottle to enjoy our wines. That would greatly reduce China sales for us.”

This reduction is particularly disappointing for Sill Family Vineyards, winners of the China Spirits and Wine Associations’ 2018 Wine of the Year for their 2015 Napa Atlas Peak Cabernet Sauvignon, as well as the coveted Double Gold Medal for excellence.

  “We’ve been focused on sales and distribution to the China marketplace since 2014.  It’s a huge market that appreciates the quality of exceptional fine wines and, specifically, they have grown their appreciation for Napa Cabernet Sauvignon by some 10-12 percent each year.  When you have some 1.5 billion people in China, those consumption numbers are more than substantial to someone like us—a small, family producer of limited production, high-end wines, crafting a mere 800 cases of wine per year.”

  Sill planned to increase the percentage of his business in China from four percent to eight in 2018 and with a 15-20 percent increase annually through 2023.

  “These plans have since changed,” said Sill. They now plan to refocus on the U.S. market, concentrating on high-volume wine consuming states such as Texas, New York, New Jersey, California, Illinois and Florida.

  If the tariffs continue, pushing Sill and other California wineries out of the Chinese market and back into the U.S., it could cause problems for lesser known wines.

  “If these California wineries decide to curb sending that wine into China, the wine needs to be sold somewhere, and it could come back here to the United States, which could lead to more competition for shelf space and storage with other state wine industries,” said Michael Kaiser, Vice President of trade group, Wine America.

  However, Kaiser said, despite the high tariffs that threaten to increase, even more, it doesn’t appear other California wineries are following Sill out of China.

 “The exports to China from the U.S. are up 18 percent this year so far. It’s still increasing. I think it was the number fifth-highest market last year for U.S. wine. About $80 million worth of U.S. wine was sent into China last year. So, it doesn’t appear that the tariffs are compelling people not to export their wine to China. I think that it shows how valuable a market it is that people are willing to pay these new tariffs on their wine going into that market,” said Kaiser.

  That doesn’t mean that there hasn’t been an effect, said Kaiser. The impact will be more apparent after the new year. “It’s hard to really quantify because [the tariffs] haven’t really been around that long, but we’ll have to look and see what it’s like in January and February when we have the numbers for the year,” he said.

Beer

  For many in the brewing industry, what should have been a banner year of expansion and growth ended up as something much different. In December 2017, Congress lowered the federal excise tax from $7/barrel on the first 60,000 barrels for domestic brewers producing less than two million barrels annually, to $3.50/barrel. For imports and domestic brewers producing over two million barrels annually, barrel costs were reduced from $18/barrel to $16/barrel on the first six million barrels. The tax cut opened up staffing and expansion opportunities that excited many brewers.

  “Then a few months later, unfortunately, the Trump administration imposed a 10 percent tariff on aluminum, which raised costs for brewers,” said Jim McGreevy, President and CEO of The Beer Institute, the oldest beer trade organization in the U.S.

  “We’re seeing an impact to the industry and brewers big and small. We estimate that the tariffs are a $347 million tax on beer. I told you about that tax relief we received in December—that was roughly $130 million of tax relief for beer. So, we received $130 million tax relief in December, and in March we received a $347 million tax increase. This is definitely affecting the industry as a whole.”

  The tariff on imported aluminum contributed to the rising prices of cans – in a time when more breweries than ever are embracing use of 12 and 20 ounces cans, as well as the to-go style “crowler.” The extra cost can severely affect the bottom line.

  “Aluminum is the single biggest input cost for beer brewers. Of the 6,000 or more breweries in this country, you see more and more distributing their beer, and you see more and more putting their beer in aluminum cans and aluminum bottles. So this is a major input cost for beer brewers, big and small. That 10 percent tariff affected beer brewers because a large portion of aluminum used to put beer in comes from outside the country,” said McGreevy.

  It doesn’t seem to matter where or how a brewer buys their aluminum either.

  “One large brewer announced a few months ago that this was a $40 million cost to them every year. We’ve had small brewers who are members of ours—even small brewers who are not members of the Beer Institute—tell us that their aluminum costs are going up, even if they get their aluminum from a broker. This is affecting the price of aluminum up and down the chain, no matter how you get the aluminum, whether you have long-standing contracts with aluminum providers, or you’re a smaller brewer, and you’re getting your aluminum from a broker,” said McGreevy.

Bourbon and Other Spirits

  The U.S. Bourbon industry is hit hardest in the EU where retaliatory tariffs of 25 percent threaten to stifle what has been, over the last few years, a booming industry. Eric Gregory, President of the Kentucky Distillers’ Association, a non-profit trade association founded in 1880, told The Grapevine Magazine that Kentucky Bourbon is an $8.5 billion industry with the state, employing 17,500 Kentuckians with a payroll of over $800 million. Bourbon distillers contribute $815 million each year in local, state, and federal taxes, with much of their local and state taxes going to fund education.

  According to Gregory, Bourbon has remained relatively safe thanks to the foresight of larger distillers. “So far, and I say that with a word of caution, we have not had that much of a dramatic impact. The reason is mainly two-fold: a lot of the smaller craft distilleries really haven’t gotten into the export market yet—they’re barely able to produce enough product just for the regional market at best. The bigger distilleries that have the global distribution network and who are expanding at rapid rates, mainly to meet that global demand, most of them had the ability to stockpile product overseas before the tariffs hit. From every indication I’ve been told, that is carrying them through until about the first of the year,” said Gregory.

  However, after the stockpile dwindles, prices will likely go up, and Gregory said that will likely keep Bourbon from continuing its uptick as a serious contender on the world stage.

  “I don’t think you can find a better example of free and fair trade than Kentucky Bourbon in the last 20 years. We have grown exponentially. In 1999, just a couple years after the tariffs, NAFTA and the free trade pact with the EU took effect, as a state we only produced 455,000 barrels of bourbon. Last year we produced 1.7 million barrels of bourbon. Much of that is going to the global exports. [We’ve been able to] put ourselves on a level playing field with our friends in the Scotch industry and other great whiskey markets. We’ve been able to convert drinkers to Kentucky Bourbon, and if we have a problem with competing on the shelves and prices, then we can lose some of those converts who might look at what they used to drink, and it’s less expensive, and they’ll start drinking that again. At that point, if we’ve lost them, we might have lost them for a generation,” Gregory said.

  Bourbon distillers can choose to absorb the cost of the tariffs, which hurts the local economy as a whole. “That’s less money and profits coming back to your companies, which means less investment in Kentucky, fewer jobs, and we don’t like that either,” said Gregory. “In Kentucky, with Bourbon being such an economic driver, both from jobs to tourism, we are just now starting to ratchet up production and tourism opportunities, and it’s really like throwing a wet blanket on a booming industry.”

  What worries Gregory the most, is the long-term effects that the tariffs may have within the Bourbon industry and on Kentucky. “Worst case scenario, you get to a price war, where there’s an abundance of Bourbon on the market, and that drops down prices, and that significantly harms our smaller craft distillers. They’re just now trying to survive in this market,” he said. “Even worse, worst-case scenario, if distillers start to produce less Kentucky Bourbon, which has a dramatic ripple effect across the Kentucky economy, and not only means fewer jobs and less investment, but we are the only place in the world that taxes aging barrels of spirits. So if you’re enjoying an 18-year-old bottle of Kentucky Bourbon, it’s been taxed 18 times, and the great majority of that tax revenue goes back to fund local schools. If for whatever reason we get to the point where we’re producing less, then, it can ultimately hurt education and other public health and safety programs here in Kentucky.”

  Other spirit producers have lost contracts, been forced to lower price points in other countries, and had to adjust future growth projections due to the tariffs, American Craft Spirits Association Executive Director Margie Lehrman told The Grapevine Magazine.

  “I’ve had distillers tell me that they had contracts on their desk ready to be signed for export to China, for instance, and those contracts got ripped up. It’s just simply off the table,” she said. “I’ve had other distillers tell me that they had actual product on freight going over to Great Britain, where they were told by the importer, ‘If you want us to off-load your freight, your price point has to drop down to this.’ I had one distiller tell me they had estimated over 30 percent of their business [would go to] export sales and because of the tariffs, they needed to knock that down to 15 percent, which is really significant for these small businesses.”

Suppliers

  Some industry suppliers who manufacture their equipment anywhere other than the U.S. were hit by the second round of tariffs in September. This tariff affects manufacturers of stainless steel fermentation tanks, such as William Cover’s company, Fermenters Choice Stainless Ltd. They import stainless steel fermentation and storage tanks for wineries, brewing and industrial purposes;  manufacturing their tanks in China, and then shipping them to the U.S. and Canada. Because of this, their fermentation tanks were hit with a 10 percent tariff in September, and, if the talks between the U.S. and China fall through, could increase to 25 percent in early March 2019. Cover only recently expanded into the U.S. in 2017. Previously he’d serviced only Canada.

  Cover told The Grapevine Magazine that right now he cannot compete with American made tanks, but he believes that once stocks of pre-tariff steel deplete and manufacturers begin buying more expensive U.S. steel, he may see a swing back in his direction, though, at a higher price.

  “There are also tariffs on imported stainless steel–the raw stock used by U.S. based tank manufacturers to make tanks. So once their current inventory of stock and their costs and final product cost is likely to increase as well. That should make my price competitive again, although at a higher final cost to the winery and brewery than before,” said Cover.

  For now, Cover looks to markets other than the U.S., a move he believes many other manufacturers will make. “The products produced in countries like China now need to find another market. There will likely be a reduction in their export price. I am now expanding my business to South America – there are large wine producing regions in Chile and Argentina. This is an example of the consequences of tariffs– other countries will buy less expensive products, decrease their costs and increase their market share.  These new tariffs will contribute to lower cost, foreign growth in the wine industry,” he said.

  Imported brewing equipment such as bright tanks have remained mostly unaffected by the tariffs but already carried a four percent tax before the trade war.

Restaurants and Retailers

  For restaurants and retailers, the tariffs affect the bottom line when their alcohol suppliers—breweries, wineries and distilleries—increase prices due to rising production costs. Justin Shedelbower,  Communications Director at the American Beverage Institute, a trade organization that represents restaurant chains that sell alcohol, told The Grapevine Magazine what happens when these price hikes flow downward.

  “For an industry such as the beer industry, that uses a lot of aluminum, [the aluminum tariff] increases the production cost significantly, which forces them to raise the price of their products. That price increase rolls downhill to the consumer and restaurant level,” said Shedelbower. “Once you get to the restaurant, it’s higher priced beer. The restaurant has two choices. They can either keep their prices the same and eat that extra cost, reducing their profit margins, or they can increase the price they sell to their customers with, and that just ends up reducing sales. If something costs more, people buy less of it.”

 Reduced sales lead to reduced profits, which may lead to canceling plans for future expansion or cutting staff.

  “Many of these restaurants already have slim profit margins as it is. When profit margins are eaten away further by either taking on the costs of these tariffs or just not selling as much because the prices are higher, it just eats away at it further. So now they don’t have this extra cash on hand, whether maybe they were planning on expanding, so maybe now they can’t expand or hire the additional employees that they needed. Or it can induce layoffs,” said Shedelbower.

A Possible Solution in the Works

  With the signing of the USMCA and the 90-day truce with China, it’s possible that the worst is over, and the world will soon see a return to normal trade routines. Reactions to these events are encouraging to both trade organizations and producers; however, there is still plenty of work to do.

  “We were pleased to see there will be a pause in any tariffs for at least 90 days. We will continue to let Congress know about our feelings on the tariffs. What it means, in the long run, is anyone’s guess,” said WineAmerica’s Kaiser.

  “The signing of the USMCA is definitely a step in the right direction and will help alleviate tensions between the three countries. However, the tariffs on imported steel and aluminum still remain—an elephant in the room that needs to be addressed. The U.S. imposed tariffs, and the subsequent retaliatory trade penalties continue to threaten the hospitality and alcohol industries with higher operation and production costs, as well as induce growing challenges for accessing foreign markets,” ABI’s Shedelbower told us.

  “We hope lawmakers require the administration to end tariffs as a condition of support for the United States-Mexico-Canada Agreement. In our eyes, the deal is incomplete until the administration eliminates all steel and aluminum tariffs,” The Beer Institute’s McGreevy said.

  Cover of Fermenter’s Choice is happy about the truce, but he thinks a deal will take into account the changes the tariffs made to the market. “It remains to be seen how long it will take to remove them altogether. I don’t expect that to happen quickly as the American companies that ramped up production of steel and other commodities—reopening old plants, hiring new workers, etc., will lobby hard for some time to recoup their investment. It’s not fair to them to remove the tariffs so quickly—and a bad political move for Trump. I would expect the second tariff to come off after a few months, but the first tariff could be a year or longer.”

  Igor Sill is relieved, not only for himself but for the positive impact a deal could have on both the Chinese and U.S. financial markets. “China’s financial market has been severely depressed since Trump announced his policy’s intention, and of course, we’ve seen Wall Street’s, and the global stock markets drop as well. With today’s “truce” announcement I sense that wiser minds will prevail and an equitable resolution, i.e., no tariff, or considerably lower tariffs will salvage the global economic markets and my ability to sell our wines into China. Overall, I’m much more optimistic now.”

WINERIES and the HOLIDAYS: Inseparable Partners in Making the Season Merry

By: Cheryl Gray

Portrait of Santa Claus watching tv, celebrating with a glass of champagne and panettone

With the holiday season comes infinite ways to celebrate the fruit of vineyards from coast-to-coast. Wineries and tasting rooms across the U.S. count the time between Thanksgiving and New Year’s to be amongst their busiest and, in some cases, amongst their most profitable. Moreover, ancillary businesses, including hotels, inns, restaurants and special events venues, benefit from creative partnerships with local wineries during the holidays.

Walter Clore Wine & Culinary Center

  The Walter Clore Wine & Culinary Center stays open year-round and features Washington wines in its tasting room and during special events. The space was named for the man whose years of scientific research established Washington state as the second-largest premium wine producer in the country. According to the Center, Washington’s wine industry contributes approximately $14.9 billion to the U.S. economy and supports an estimated 27,000 jobs. Those numbers underscore why the holidays are an important component of marketing the state’s wine producers and grape growers.

  The Clore Center showcases Washington’s wine industry, as well as the science of enology, through a combination of educational, experiential and entertainment activities. Its holiday events kick off just before Thanksgiving, featuring established and up-and-coming Yakima Valley wineries. On Saturdays throughout November and December, several Yakima Valley winemakers will be pouring at the Center’s “Meet the Makers” event with the pertinent theme, “Thanksgiving in Wine Country.” In December, the Center will feature sparkling wines from Washington’s Columbia Gorge. 

  The Center’s holiday events will also include classes every Saturday in November and the first two Saturdays in December, according to Deb Carter, the Clore Center’s Wine and Culinary Program Director. That might, for example, include a cooking class from a local master chef on how to pair local wines with farm-to-table meals using local produce.

  In addition to educational classes, the venue rents out space during the holidays for corporate gatherings, parties and other holiday-centered outings, many of which choose to feature local wines.

  Wineries, tasting rooms, restaurants and others vested in promoting Yakima Valley wine during the holidays are, at the same time, raising money for a charitable cause—fighting hunger. “Thanksgiving in Wine Country,” will benefit Northwest Harvest and kicks off during Thanksgiving weekend. The event also allows visitors to take advantage of deals on wines and related products.

Milbrandt Vineyards

  Other Yakima Valley December events include Prosser, Washington-based Milbrandt Vineyards’ “Holiday Flights and Bites,” featuring holiday wines and food pairings with live entertainment.

  “The holidays are key for us because customers tend to purchase more of our higher tier wines like our Reserves, especially if they are buying wine as gifts,” says Milbrandt Vineyard’s Tasting Room Manager, Karen Ballew. “This holiday season is particularly special because we will be releasing our ‘Bottle Your Charity’ Sparkling Rosé with the winning charity’s mission featured on the back of the bottle. Direct donations from wine sales go to the charity.”

  One of Millbrandt’s holiday marketing strategies, says Ballew, is a play on words derived from a holiday favorite, Twelve Days of Christmas. “We will be bringing back our 12 Days of Deals, an online campaign we ran during the holidays that was incredibly successful the last couple of years. We will also be launching our Cyber Monday campaign where customers can get up to 40% off certain cases of wine.”

  As for partnering with local businesses, Ballew says Millbrandt favors specialty food shops, whose treats pair well with Milbrandt wines. “We partner with a few local business, most notably Jade’s British Girl Treats,” she says. “Jade’s is a local bakery/chocolate/sandwich shop in Prosser. They just opened a few months ago in downtown. They handle catering for our events and also cater our small plate menu that we offer in the tasting room daily.

  We also feature for sale a small selection of Chukar Cherries that are specifically paired with some of our wines. Another partnership is with Wine Country RV Park. We pour at their evening tastings about once a month during their peak season. They promote our events on their emails and on the TV in their retail shop.”

Tourism on the 45th Parallel

  Hotels and inns tied to wineries have a unique focus on the holidays. In Northern Michigan, wineries and tasting rooms dot the landscape along the same 45th parallel as Washington’s wine region. Among them is the internationally renowned Black Star Farms, a family-owned enterprise known for, among other products, its signature ‘Pear in a Bottle’ wine. 

  Black Star Farms provides a backdrop for holiday-inspired events, such as snowshoeing on its vast grounds and cooking classes that teach guests how to pair wines with various cuisines. Its most notable event, however, is the annual New Year’s Eve Wine Dinner, a formal occasion featuring a multi-course meal paired with wines produced by Black Star Farms. The event is popular enough that tickets go on sale beginning in early fall. Sherri Campbell Fenton, whose parents, Kerm and Sallie Campbell, established Black Star Farms in 1998, is managing proprietor. She told The Grapevine Magazine that the holidays are, indeed, big business. 

  “The holidays are a key time for Black Star Farms, for both holiday wine sales and the hospitality side of our business,” says Campbell Fenton. “Obviously, wine sales are strong for gifting and parties. We have a luxurious 10 room inn on our 160-acre property, which is a favorite for guests as a quiet, romantic escape, especially during the winter when blanketed in snow. We also host holiday corporate wine paired dinners as well as private or family gatherings. Holidays are a strong time for these. Many times, gift certificates are purchased for wine sales or inn stays during the holidays, as a gift of Black Star Farms is a very special one for anybody.”  

  At Washington’s end of the 45th parallel, there’s the Hotel Maison, a landmark in downtown Yakima, listed on the National Register of Historic Places. The hotel’s holiday offerings include a package featuring Yakima’s annual “Sip, Stroll & Stay.” This promotional event features a downtown stroll with food, entertainment, and, at the end of the evening, an opportunity to overnight at the historic Maison, built in 1911 by Yakima Freemasons. Guests receive their choice of a bottle of wine, cider or beer delivered to their room. In addition to hosting wine tastings with local sommeliers, Hotel Maison does its part to promote wineries during Yakima Valley’s ‘Thanksgiving in Wine Country.’ They feature an overnight package that includes a bottle of Yakima Valley wine and a gourmet cheese board delivered to guests.   

  A quieter holiday respite can be found at Washington’s Cozy Rose Inn, an acclaimed bed and breakfast owned by husband and wife Mark and Jennie Jackson in Yakima Valley’s Grandview area. The Jacksons have relied upon friendships with local wineries over the past 27 years, which keeps guest referrals coming in both directions. Having a great location, Mark Jackson says, goes a long way. “Guests come to the Valley for the sunshine and wine. We’re just in a prime location, being in the middle of Yakima Valley. They taste on their way down the Valley, stay here, eat dinner, and the next morning, they’re off to Red Mountain and Prosser Wineries.”

  In addition to its chef-inspired gourmet breakfast, during the holidays the Cozy Rose Inn offers guests staying at least two nights a candlelit dinner for two, which includes a bottle from one of the region’s wineries.

Holiday Food Pairing

  Foodies looking for a Southwestern flavor to pair with Washington wines during the holidays turn to Los Hernandez Tamales, another family-owned business in Yakima Valley. They tout an authentic family recipe, combining it with local, Washington state ingredients, including the state’s bountiful asparagus crop. Rachel Wilburn, whose father, Felipe Hernandez, started the business in 1990, says the holidays are tremendously hectic for the Hernandez clan.  

  “Tamales are traditionally a holiday season food. Christmas, in particular, is the busiest time for them. We open early, and everyone gets tamales with or without an order. We usually have 400 to 600 dozen in pre-orders, but we sell 1,000 dozens (12,000 single tamales) by the end of the day, all made by hand.” Wilburn says that Los Hernandez Tamales is also called upon all over Washington to participate in events that pair their famous tamales with regional wines.

  Gingerbread co-stars with wines at Desert Wind Winery, which supports a local charity through its annual “Gingerbread Build Off.” This holiday-themed event, held in November, draws professional bakers from throughout the Yakima Valley region.  Wine barrels serve as the background for gingerbread creations large and small in a winery whose Southwestern style architecture belies its Washington state location. 

  It’s not difficult to see how the holidays bring out the best in wineries and related industries across the United States. From charitable giving to savvy marketing, synergy builds between businesses that understand the value of partnerships during the holiday season.

Don’t Get Caught Off Guard During Wildfire Season: Tips for Your Winery

By: Markel Corp.

winery in front of a vineyard

Weather conditions and natural disasters occasionally take a toll on vineyards and other agricultural production systems. Due to climate change and prolonged drought, the frequency and severity of wildfires is expected to increase. These risks highlight the need for winegrowers and winery owners to be as prepared as possible to reduce risk.

Putting Your Plan Together

  Many wineries may have already revisited their evacuation plans and filed them with their respective state agencies. Staying current of wildfire season developments can help enhance your ongoing planning and preparedness. Technology can also support your wildland fire planning and response. Additional planning resources by the American Red Cross is available at: www.redcross.org/get-help/how-to-prepare-for-emergencies/types-of-emergencies/wildfire.html

Steps to Take Before a Wildland Fire Event

•    Take a close look at your program’s communication protocol for evacuations. Everyone should have a clear understanding of alarms that signal when you need to evacuate. Assign specific accountabilities to staff so everyone works collectively to achieve a positive outcome of protecting lives and property.

•    Work with your regional Forest Service to better understand emergency evacuation procedures in your area.

•    Coordinate with the American Red Cross, FEMA, and other emergency agencies to give them the locations of your evacuation sites. Invite your local fire department out as part of a fire pre-incident plan. They should be provided a map of your property, highlighting planned evacuation routes. They can also offer technical assistance to support your plan.

•    Prepare and post route maps for each site, including alternate routes. With a large fire, you may need to use “Plan B.”

•    Consider forming a cooperative agreement with another site to share resources and serve as an evacuation site.

•    Identify key equipment to be evacuated, including computers and other vital records. As part of your business continuity planning, programs should already have information backed up and stored remotely. But, in case you don’t, practice removing this equipment as part of your practice response.

•    Stock an ample supply of water and easily-prepared foods until rescue arrives.

Controlling Wildland Fire Exposures

Wildland fires are one of the most catastrophic threats to wineries.  Protecting your structures from ignition and fire damage is an important program objective second only to an evacuation plan. Taking precautions ahead of time can help reduce the exposure of a wildfire intrusion. There are a number of proactive measures a winery can take to mitigate the property damage a wildland fire can cause.

  To support a fire adaptive community philosophy, the local fire department or authority having jurisdiction for your program should require you to develop a landscape plan for the property. It is wise to seek their advice and incorporate their recommendations as you develop a plan specific to your location. You can learn more about fire adaptive community planning at the Fire Adaptive Communities, www.fireadapted.org

  According to the NFPA 1144 – Reducing Structure Ignition Hazards from Wildland Fires, fire protection plans should address four zones around a property.

What are the primary threats to property during a wildfire?

  Research around property destruction vs. property survival in wildfires point to embers and small flames as the main way that the majority of properties ignite in wildfires. Embers are burning pieces of airborne wood and/or vegetation that can be carried more than a mile through the wind, they can cause spot fires and ignite structures, debris and other objects.

  There are methods for property owners to prepare their structures to withstand ember attacks and minimize the likelihood of flames or surface fire touching the structure or any attachments. Experiments, models and post-fire studies have shown structures ignite due to the condition of the structure and everything around it, up to 200’ from the foundation. 

  This is called the Home Ignition Zone. (Or referred to in this document as the structure ignition zone.)

What is the Structure Ignition Zone?

  The concept of the structure ignition zone was developed by retired USDA Forest Service fire scientist Jack Cohen in the late 1990’s, following some breakthrough experimental research into how structures ignite due to the effects of radiant heat. 

The structure ignition zone is divided into three zones; immediate, intermediate and extended.

Immediate Zone

  The structure and the area 0-5’ from the furthest attached exterior point of the structure; defined as a non-combustible area. Science tells us this is the most important zone to take immediate action on as it is the most vulnerable to embers.

  START WITH THE STRUCTURES then move into the landscaping section of the Immediate Zone.

•    Clean roofs and gutters of dead leaves, debris and pine needles that could catch embers.

•    Replace or repair any loose or missing shingles or roof tiles to prevent ember penetration.

•    Reduce embers that could pass through vents in the eaves by installing 1/8” metal mesh screening.

•    Clean debris from exterior attic vents and install 1/8” metal mesh screening to reduce embers.

•    Repair or replace damaged or loose window screens and any broken windows. Screen or box-in areas below patios and decks with wire mesh to prevent debris and combustible materials from accumulating.

•    Move any flammable material away from wall exteriors – mulch, flammable plants, leaves and needles, firewood piles – anything that can burn. Remove anything stored underneath decks or porches. Intermediate Zone 5-30’ from the furthest exterior point of the structure.  Landscaping/hardscaping – employing careful landscaping or creating breaks that can help influence and decrease fire behavior

•    Clear vegetation from under large stationary propane tanks.

•    Create fuel breaks with driveways, walkways/paths, patios, and decks.

•    Keep lawns and native grasses mowed to a height of 4”.

•    Remove ladder fuels (vegetation under trees) so a surface fire cannot reach the crowns. Prune trees up to 6-10’ from the ground; for shorter trees do not exceed 1/3 of the overall tree height.

•    Space trees to have a minimum of 18’ between crowns with the distance increasing with the percentage of slope.

•    Tree placement should be planned to ensure the mature canopy is no closer than 10’ to the edge of the structure.

•    Tree and shrubs in this zone should be limited to small clusters of a few each to break up the continuity of the vegetation across the landscape. Extended Zone 30-100’, out to 200’. Landscaping – the goal here is not to eliminate fire but to interrupt fire’s path and keep flames smaller and on the ground.

•    Dispose of heavy accumulations of ground litter/debris.

•    Remove dead plant and tree material.

•    Remove small conifers growing between mature trees.

•    Remove vegetation adjacent to storage sheds or other outbuildings within this area.

•    Trees 30 to 60’ from the structure should have at least 12’ between canopy tops.

•    Trees 60 to 100’ from the structure should have at least 6’ between the canopy tops. If an evacuation becomes evident

•    If possible, identify the location and direction of the fire event. Remain cognizant that this can quickly change direction and speed.

•    Clearly explain your evacuation procedures to all that may be involved.

•    Identify special medical needs and gather emergency equipment and necessities, including trauma supplies for ready access.

•    Designate enough vehicles to evacuate everyone safely. Reinforce safe driving practices with all drivers.

•    Equip staff with emergency communications equipment (cell phones, walkie-talkies, whistles, flares, colored smoke canisters, etc.). Ask your local jurisdiction authority for suggestions.

•    Load key equipment, vital records, food, and water.

•    Ask qualified associates to disconnect and move LP gas tanks to a safer location, such as a gravel lot, or follow the manufacturer’s instructions to empty the tanks.

•    Warn firefighters of underground fuel storage or LP gas tanks before you leave. Making your facility fire resistant can help reduce property loss. However, keep in mind that these steps should be done only by assigned staff in conjunction with an evacuation and never require or allow staff to remain behind. Close and secure all doors and windows once combustible materials have been moved away from these openings.

•    Wet down buildings and roofs. There are commercial grade fire retardant products available that can help support your efforts to protect your property. But do your research ahead of time; and don’t let the application of these products reduce the priority of evacuating.

•    Have qualified personnel cut down trees in the fire path, bulldoze a firebreak, and cut field grass as short as possible.

•    Remove brush and dry vegetation near buildings.

  Fire EvacuationWhat you need to know

During wildfire season, you may be forced to evacuate in a hurry. People are your first priority; to include guests, staff and firefighters. Most fire evacuations provide at least a three-hour notice; but due to the scope of your operation, you may need to do it sooner. Take proactive steps before and during an evacuation to reduce anxiety and avoid injuries. Plan, prepare and practice.

Filing claims

  In the event your area experiences a wildfire event, it is highly likely it will not only be monitored by your insurance agent, in addition to your insurance company. Pre-loss documentation, such as video recordings and pictures of buildings, business personal property inventories, should be up to date and included as part of your evacuation materials. Working with your agent is a great resource to understand what might be necessary to help with documentation, if you should need it.

Enforcing Your Trademarks: How Far Should You Go?

Legal Protection word cloud concept
Legal Protection word cloud concept

By: Brian D. Kaider, Esq.

You’ve secured federal registration for your trademarks and you’ve been building your brand recognition.  Per your trademark attorney’s recommendation, you’ve had quarterly searches conducted to find similar marks.  Lo and behold, a new entry to the market is using your trademark.  Now what?  Stop and take a breath; let the initial surprise or anger settle. There is a lot to consider before taking any action.

Take Stock of the Situation

  First, take a look at your own trademark.  Is it the name of your winery or of one of your products?  Is it a national brand or one that is distributed in a small geographic area?  In what classes of goods and services is it registered (e.g., class 033 for wine, class 040 for “custom production of wine for others,” etc.)?

  Then look at the competitor’s mark.  Is the mark identical to yours or similar?  How similar?  Is it broadly distributed?  Is it used for the same goods and services as your mark?  If not, how similar are the goods and services?  Are your products marketed through the same trade channels?  Are consumers likely to encounter both your products and theirs?  Have they attempted to register their trademark and, if so, where are they in that process?

  No one question will be determinative in any given case, but on balance, they will help develop a sense of how much effort should be expended to enforce your rights.  As discussed below, there are numerous paths, each with its own set of risks and potential rewards.  An international brand that is known throughout the industry, like E. & J. Gallo, must be far more protective of its Gallo® mark than a small winery in Oregon that has a registered trademark for a rosé product only distributed in the Pacific Northwest.

First Contact

  As the owner of a registered trademark, it is your duty to “police” your mark; that is, to monitor unauthorized use of your mark by others and to enforce your right to exclusivity of that mark.  When large corporations learn of potential infringement, their immediate response is generally to have their attorneys send a cease and desist (C&D) letter.  For smaller companies, a personal attempt to contact the owner of the infringing business is often effective.  Sometimes the other party simply did not know about your mark.  If you found their use of the mark before they spent considerable time and money developing it as a brand, they may be willing to simply let it go.

  When making these calls, it is important to maintain a demeanor that is both friendly and firm.  There is no need to accuse the other side of wrong-doing or of violating your trademark knowingly.  However, you should simply let them know that you do have a registration for the mark and that their use is likely to cause confusion in the market as to the source of your respective goods.  If you give them a reasonable amount of time to work through any inventory bearing the infringing mark and to rebrand, this can often be the end of the matter.

Cease and Desist Letter

  If the friendly approach doesn’t work, the next step is generally a cease and desist letter.  This is most effective if drafted and sent by an attorney.  The tone of these letters tends to be more matter-of-fact.  They identify your trademark(s); explain that you have spent a considerable amount of time, effort, and money to build your brand around the mark; identify the other party’s infringing use; state that the use is unauthorized and likely to cause economic harm and loss of goodwill in your brand; and demand that they stop using the mark within a given time frame.

  While these letters can sometimes be effective, especially against smaller companies, they have become so commonplace that often they are simply ignored by more savvy companies who may wait to see if further steps are taken before deciding whether to rebrand.  Accordingly, you should carefully weigh all of your options and decide in advance whether you will escalate the matter if your C&D letter is ignored.

Trademark Opposition

  If the other side has attempted to register their mark, there is a narrow window of opportunity for you to challenge their application before it registers.  If, after conducting a search of other marks, the U.S. Patent and Trademark Office (USPTO) determines that the mark is registerable, it will publish the mark in the Official Gazette.  This publication opens a 30-day window for anyone who believes they will be harmed by registration of the mark to file an opposition to the application.  

  This process should not be entered into lightly.  In some cases, simply filing the opposition will be enough to get the other side to give up its mark.  But, if they choose to fight the opposition, you will find yourself in a litigious process that takes time, effort, and money to complete.  As in civil litigation, the parties to an opposition file motions and briefs, request documents from the other side, take depositions, serve interrogatories that must be answered, and present their evidence to the Trademark Trials and Appeals Board for its consideration. 

  If the opposition goes all the way to the trial stage, it will generally take at least 18 months from when the notice is filed to when the last brief is due and will cost each side in the tens of thousands of dollars.  As with civil litigation, most oppositions do not reach the trial stage, because the parties are able to come to terms and settle the dispute on their own.  But, this often does not occur until sometime in the discovery phase, after both sides have spent a considerable amount on legal fees.

  It is important to note that the object of an opposition proceeding is to prevent registration of the other side’s trademark and, if you are successful, that is your sole remedy.  There are no monetary damages awarded, nor can you recover your legal fees from the other side.  Moreover, while they will lose their ability to register their trademark, it does not necessarily mean the other side will stop using the mark on their goods or services.  In that case, you would have to file a trademark infringement litigation (see below) to get them to stop using the mark, entirely.  In practical terms, succeeding in an opposition will often be enough to get the other side to abandon their mark, because if you were to follow through with a civil litigation, they could be on the hook for treble damages for willful infringement.

Trademark Cancellation

  If you discover the other side’s trademark application after the 30-day opposition window has expired, your only option to challenge the mark at the USPTO is to wait until the trademark actually registers and then to file a trademark cancellation proceeding.  Though there are some differences between cancellation and opposition proceedings, particularly if the challenged mark has been registered for more than five years, they are similar in most procedural respects. 

Trademark Infringement Litigation

  As one might expect, filing a trademark infringement case in federal court is the nuclear option.  Depending upon the jurisdiction, the time frame for completing a litigation may be faster or slower than an opposition or cancellation proceeding at the USPTO.  But, whereas those procedures will likely cost the parties tens of thousands of dollars, a civil litigation will likely reach six figures, or more. 

  The reason for this higher cost is that there are more issues to consider in these cases.  If  your are successful in a civil litigation, you may not only obtain injunctive relief, foreclosing the defendant from all future use of the mark, but also may obtain monetary damages associated with the defendant’s past use of the mark, as well as attorney’s fees expended in the proceeding.  Moreover, if the defendant is found to have willfully infringed your trademark, they may be required to pay treble damages. 

  These issues, which are not even addressed in an opposition/cancellation, add breadth to the scope of discovery taken, which increases the cost.  Further, whereas most opposition/cancellation proceedings are decided without an oral hearing, a civil litigation generally requires live testimony and argument in front of a judge or jury.  These proceedings require a great deal of attorney preparation, dramatically increasing legal fees.

Conclusion

  As the owner of a valid trademark registration, you are obligated to police your mark and failure to do so can result in a dramatic diminishment of your rights or even outright abandonment of your registration.  But, that does not mean you have to file a civil litigation against every minor infringement.  Determining the appropriate path in any given situation requires a careful evaluation of all the circumstances and balancing the risks of action versus inaction.  It is critical to engage a knowledgeable trademark attorney, who will properly assess these risks, your likelihood of success, and the most effective course of action in your case.  

  Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry.  He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation. 

bkaider@kaiderlaw.com or call (240) 308-8032

Dealing With Contracts

vineyard workers in the vines

Winery and Vineyard operations are a happy mix of old world charm with agricultural roots, where a neighbors word was as ‘good as gold’ and a handshake was an iron clad agreement, mingled into the modern world with exposures  that are more diversified and with specialized job duties, broader national reach and the increasing litigious environment.

  Contracts can be quite intimidating, confusing and even deceptive at times.

Contract ATips

  Before we get started, as with all editorial information, this should in no way be considered legal advice.  Please contact your attorney for all legal advice specific to your needs or situation.

For simplicity, we will look at two main views; contracts that you create and have others sign and the contracts that you sign as a winery/vineyard operation.

Contracts You Create

  Some of the most common agreements or contracts that a winery and vineyard operation creates can include worker contracts, processing contracts and vendors.

  Depending on the circumstance, contracts for workers need to be clear on employment relationships as an employee, subcontractor or increasingly, a co-employee through a Professional Employer Organization (PEO). 

  The winery industry has a wide breath of operations with the larger accounts that need H-2A seasonal workers contracts to the sole proprietorship where the labor is all family.  A contract should be specific on the conditions and expectations for both parties.

  In processing, there are custom crush operations that handle the complete cycle of wine production from crush to storage, down to a single task process, like using a mobile bottler.  Contracts can relate to a transportation exposures where a hired contractor is used to move the stock between locations or a storage warehouse exposure that needs to address the conditions and the insurance responsibility for the wine value.

  Consider the time element and any penalties associated if an operation under contract fails to meet expectations.

Contracts You Sign

  If you have a contract with a bottle manufacturer, cork maker, label printer, bottle filler and transportation company, do they line up with the timing and expectations to make sure your production is a success? 

  If you are responsible for the production operations, are there service contracts in place for the equipment if a part or service is needed at a crucial time in production? 

  Another common contract to the business is the Lease Agreement.  The basics are familiar to most, with renting a location to run an operation, having a monthly fee and a term agreement are very generic.  The contract can also have specifics as to the type of operations and alterations allowed.  It may be OK to make wine but not allow pressure vessels or brewery operations.  You can have the tenant improvements and betterments with installing a tasting bar, but no authority to add a kitchen space. 

  Contractors and vendors can also require a winery or vineyard to sign a contract.  Examples include a band playing on the stage, craft vendors at the harvest festival or food services.  In the best interest of the winery, the contract should address the insurance aspects of the agreement.  Each of the details in the contract should be viewed through the lens of the risk manager.  A contract should be clear and valid but remember, it is not an insurance solution.  The contract should address the specific insurance requirements needed.

  Insurance policies can also be considered a contract. Verify the language on your insurance policy protects and defends the winery.  The language should be clear to both the scope and the limit of insurance required.  In most cases, providing proof of insurance with the adequate limits is enough justification for the insurance clause.  Taking it one step further, the contract may require the signer to add the winery as an Additional Insured for events that are hosted on the insured property.

  In many cases, having a contract in force can be one of the triggers on many insurance policies that allow for an additional insured status to apply. 

  After the contract is properly executed and additional insured status is secured, the insured should verify that the limits of insurance available are at least equal to the limits under their commercial general liability policy.

  Time to ‘punch down’ and get a little more flavor.  When we switch gears and look at contracts the winery/vineyard operation is being requested to sign, paying close attention to details is paramount.  Signing a contract without understanding the consequence can have huge implications on your business.

  The nature of operations in the industry has many vendor exposures, whether as a festival booth or as a supplier to a restaurant or grocery chain.  Many of these contracts will have a requirement for limits as well as an indemnification clause that requires an additional insured status under the winery/vineyard insurance protection.  The contracts can get detailed with requesting high limits, giving up rights to subrogation of a loss or to ignore negligent acts. 

  One important point in reviewing a contract is to understand from an insurance standpoint, if you agree to a condition in a contract, is it something your insurance policy will cover?  If you sign a contract that is not supported by your insurance policy, you could be responsible for payments in the agreement that are not payable by the insurance carrier.  Failure to satisfy a contract may not be related to a covered cause of loss under the insurance language.

  As a vineyard, do you have a contract to be a supplier to a winery, in which the contract states if you fail to provide a certain volume you would owe a penalty?

  As a custom crush operation, are you under contract agreement to produce a product in a certain timeframe?  Are you contractually obligated to insure the wine stock of others at a certain settlement price?

  As a vendor in a national chain store, are you required to carry higher limits of insurance or coverage lines such as auto and worker compensation?

It may be difficult to do business today without contracts in one aspect of your operation or another.  Having the right contract in place can be a form of risk management, but can also be a source of liability on your operations.

  Not every business is the same and in fact one of the hallmarks of the industry is to celebrate the differences in both product and experience.  This creates a unique situation that should have an equally unique contract for the specific needs.  It is best practice to have professional legal counsel in drawing up any contract in lieu of the generic options.

  Ideally contracts will be written with clear and simple language that will address the relationship and expectations for the situation.

  The subject matter of contracts is complicated and often creates confusion. It is important for operations to begin considering some of the issues BEFORE a loss or conflict occurs.

  The best contract you can enter in, is a high quality insurance policy.  The insurance policy is a contract agreement that is signed by both parties.  Although it can be somewhat complex in the language, the details of the contract indicate the expectations of both parties and what is to happen if certain criteria is met, what coverages are included, what responsibilities are required for the insured and what promises of settlement are made by the carrier.  Insurance can play a major role in working with the various business contracts.

  As contract partners, it is recommended you work with your insurance agent or carrier to review any contract agreement to determine how it will affect your liabilities and to confirm if additional risk management tools may be needed.

Top 3 Tips for Contracts

  • 1. Get it in writing.
  • 2. Keep it simple in language and form.
  • 3. Seek professional advice from your insurance advisor and legal counsel.

For more information, please, contact us Markel Personal Lines or 262-548-9180.

Fruitful Partnerships: Family-Run Vineyards and Wineries

Mercer Family Estate, Horse Heaven Hills, Washington
Mercer Family Estate, Horse Heaven Hills, Washington

By: Cheryl Gray

From grapes to glass, teamwork is at the top of the list of requirements for any successful vineyard  or winery.  And what of the extras that come into play if that team happens to be family? 

  Just ask Brenda Mercer of Mercer Family Vineyards, whose family settled in the Prosser, Washington area in 1886, before Washington became a state.  Three Mercer brothers, Don, Bud and Rick, founded  the fifth-generation enterprise right in the heart of what is now the world-renowned, grape-growing Yakima Valley. 

  “They moved out to the Horse Heaven Hills after World War II to run a cattle and sheep operation, initially.  As things progressed and irrigation water became available, the Mercer (Ranches) began growing row crops such as sugar beets and potatoes.  Under the recommendation of Dr. Walter Clore, Don and Linda Mercer planted the very first wine grapes in the HHH in 1972 on what is now known today as Champoux Vineyard.” 

  Mercer adds that the family has incorporated education and technology into the variety of wine grapes they produce, spread across at least a half-dozen vineyards totaling nearly 1,000 acres.  ”There is a great deal of education and training happening in our neck of the woods in the field of agriculture and viticulture.  We are blessed to have the WSU (Washington State University) Wine Science Center in our back yard.  But even with education and outside training, a lot of knowledge is still gained by hands on experience. “

  John Derrick, Vineyard Manager for Mercer Ranches, has been with the family for three generations.  Derrick points out that the success of this family-run business has always included collaborating with educational partners who are in the region. “We are lucky enough to work with WSU, WSU Tri-Cities, Yakima Valley Community College, Walla Walla Community College and LAEP (Latino Agricultural Education Program).  We also work directly with educators and extension in the vineyard doing experiments and collaborating on new ideas and products. Working with the programs above, we have built up a great team here at Mercer Ranches. “

  Derrick adds that Mercer Ranches has recently placed emphasis on expanding its vineyard operations, providing, he says, the perfect opportunity to try new methods and ideas.  “I have always appreciated     the family’s willingness to try something new and I have seen that first hand with three generations now.  Mercer Ranches was well positioned to mechanize the vineyards because of the vision and drive  provided by Rob (Mercer).”

  Brothers Rob and Will Mercer, both of whom attended Washington State University, have been running the family business since 2010.  Rob is in charge of the farming and viticulture operations.  Will serves as General Manager at Mercer Estates.  In fact, many of the Mercer family offspring either currently work or have worked the farm and vineyards    Liz Mercer-Elliott, another WSU graduate who also trained in winemaking at Hogue Cellars, runs the company’s Carma Wine Club out of its Prosser Tasting Room.  Calvin Mercer, another WSU graduate, runs Austin Sharp Vineyard.  Still other family members have worked in many different facets of the company.

  According to Andrew Martinez, Head Winemaker of Martinez Vineyard & Winery, the Mercer family helped to bring to life his own family’s dream of operating a vineyard and winery in Yakima Valley.  Martinez says his immigrant father, Sergio, and mother, Kristy, a Washington native, bought and planted clones from Don and Linda Mercer back in 1981, planting three acres of Cabernet Sauvignon on property the Martinez family bought on Phinny Hill in the Horse Heaven Hills in 1978.  Martinez was born a year and a half after his father planted the family’s first vineyard. 

  “Helping to lay irrigation, plant grapes, sucker, prune, hoe weeds, shoot thin, and harvest are all things that were fairly normal chores in my upbringing. All the hard work that is spent in the vineyard is the reason for realizing the need to go to college for a better life.”  Martinez graduated from Yakima Valley Community College with a degree in Science and attended as many wine-making seminars and other educational outreach programs as he could.  He honed his wine-making skills four days out of the week while working as a dental hygienist part-time.  In the meantime, Martinez says that his wife, Monica,   who also grew up on a farm and whose grandfather, he says, was among the first winemakers in Prosser making wine from Washington grapes, earned her MBA.  The couple’s return on investment in education, Martinez says, has greatly benefitted the family business.  “Needless to say, wine and grape growing runs thick in our blood.  Monica’s MBA and my Science degrees have helped the vineyard and winery be elevated with tools they needed to be more successful.”

  Martinez says the family made the leap from grape growers to wine makers in 2005.   “… I talked my dad into making two barrels of wine for our first 50 cases. For years, we had sold the grapes but now, it was time to start utilizing them ourselves. It was time to show all the hard work and dedication in the vineyard to everyone!  Barrel-aging wines for 24 months, we had time to stockpile vintages and slowly increased amounts until 2007, where we started selling in a corner of a shared room at Winemakers Loft.  In 2009, the facility was sold and new owners wanted to fill actual tasting rooms. So, we were up with a hard decision. Was it time to have an actual tasting room of our own?  Being a microscopic winery, it was either sink or swim and we decided to go for it.  Thirty-eight years after the vineyard was planted, 14 years after our first two barrels of wine made, and 10 years after having the tasting room opened, we are making over 2,000 cases of wine and selling 95% of that through that same door each year.”

  Martinez says the business tasks are now split among the family members.  While he serves as Head Winemaker, Sergio Martinez is Grape Grower, Kristy Martinez is in charge of Tasting Room/Hospitality and Monica Martinez is Business Manager.

  Two Mountain Winery is a fourth generation enterprise headed by brothers Matthew and Patrick Rawn.  Located in Yakima Valley near Zillah, the Rawn brothers oversee 228 acres of wine grapes on seven vineyard sites used not only for their own wine production but also for their winery grape clients.

  Patrick Rawn, who is General Manager and Head of Vineyard Operations, says that once the brothers returned to their family’s land, they focused their interest, passion and skillset(s) on producing grapes for making wine, transforming what was once a family-owned tree fruit farm into a successful vineyard and winery.  They planted the first vineyard in 2000.  “Our production facility and a couple of our vineyards are located on the farm our grandparents started in 1950, near where our grandfather grew up farming… it is very important to us we honor our history and their legacy. “

Four Important Ways to Use Software in a Winery

staff placing info at a tablet

By: Alyssa L. Ochs

For hundreds of years, wineries got by with keeping track of their operations with little more than pen and paper. But in today’s competitive wine industry, getting by isn’t good enough, which is why an increasing number of wineries are relying on high-tech solutions that make running a wine business more productive and profitable. Fortunately, there are some excellent software companies that specialize in wine business software to address the common challenges that wineries face.

  With a focus on inventory, fulfillment, compliance, and wine club memberships, here’s how an investment in software can assist modern wineries.

Inventory Software

  Inventory management is a tedious job at a winery, which is why this type of software is in such high demand. Inventory software helps winery owners keep track of how many bottles of wine are available, understand the production history of the bottles, and ensure that each wine batch is traceable. This is a good type of software to invest in because it can ensure fewer counting errors and reduce the amount of time your staff has to spend manually keeping track of wine bottles that are produced, sold, and shipped.

  Fulfillment Software

  Order fulfillment can also be a challenge for wineries because it is a time-consuming and error-prone task. Fulfillment software winery can help winery staff create new orders, search past orders, view inventory details, facilitate returns, and be alerted about inventory shortages. Other fulfillment software features include the ability to view invoices, run reports, and get order status updates.

  It’s important to choose fulfilment software that integrates easily with the current information you are working with and that can provide detailed reports about supply chain issues.

Compliance Software

  Wineries must comply with many rules and regulations, which can be hard to keep track of and put you out of business if guidelines aren’t met. This is why compliance software is a popular choice among wineries to reduce business risks and keep up with important deadlines. Software companies offer solutions that help wineries follow the legal requirements of operating an alcohol-based business in a more accurate and precise way. This is particularly important when your winery begins to sell bottles to new markets outside your home region.

  However, this type of software can be unnecessarily expensive if you have a very low production volume, and you’ll still need a staff member to manage the compliance software system in-house or on an outsource basis.

Wine Club Software

  Wine clubs are great ways to retain loyal customers and stay connected with the wine-loving community. Good wine club software informs consumers how much they will save over time by becoming a member, makes it easy to buy bottles, and simplifies the process of running a wine club. With this type of investment, a winery can create shipments, print shipping labels, report on member statistics, customize shipments, and stay in touch with members more regularly.

Recommended Wine Software Companies

  The wine industry is big business for software companies, but it is a smart idea to choose a company that has specific applications for wineries rather than more general applications that are broad enough for any type of company.

  One company that specializes in the business side of wine is Microworks Technologies in Napa, California. Microworks provides direct consumer sales management software for the wine industry though tasting room, wine club, wine marketing, and winery accounting solutions.

  Scott Meloney, the president and CEO of Microworks Technologies, told The Grapevine Magazine that one thing that sets his company apart from others in the industry is that when you call Microworks, you will reach a real human being.

  “If you need technical support, we encourage you call us by phone, where you will speak to a live person and your question(s) will be answered to closure on the first call 99% of the time,” Meloney said. “Our staff is made up of industry veterans who understand the wineries business and will relate to your questions.”

  Meanwhile, VinNOW LLC is a winery software company that provides customer, wine club, and sales and inventory management all under one roof. This Mesa, Arizona-based company also offers free training and support, extensive reporting real-time wine club management, point of sale, and QuickBooks integration.

  Ted Starr, the CEO of VinNOW LLC, said that what sets his company apart is VinNOW’s extremely reliable customer service.

  “This ranges from customer support when the wineries need it, seven days a week, to the ability to support wineries who can’t rely on their internet connection.”

  Another company that provides a comprehensive software package that integrates numerous aspects of winemaking is The Winemaker’s Database. This Los Gatos, California company has been in the industry since 1983 and assists wineries with everything from tank transactions to barrel tracking, analytical data, customizable reports, 702 generation, and more.

  The Winemaker’s Database’s Vice President, Emily Vahl, told us how her company was originally created by a winemaker and how it still offers winery solutions from a winemaker’s perspective, rather than that of a company or programming team with no winemaking experience.

  “Also, our entire support team consists of former winemakers or winery employees that have worked hands-on with crafting wine,” Vahl added. “When our customers call WMDB, they speak with people who understand their specific needs.”

Considerations and Important Software for Wineries

  There are many considerations to take into account before investing in a new winery software system, and you may want to talk to other wineries in your region about what they use and what works well for them before making any decisions. Compare costs for similar types of software and think about whether you only need a single-service type of software or would benefit more from a comprehensive software program that addresses multiple needs.

  Other considerations include how customizable software is for your winery’s specific needs, the data setup process, and how you will transition from your current system to a new one. You might also think about the ability to use software through a mobile app, how easy to navigate the web interfaces are, and how secure the site is for cloud computing technology and data center privacy. Customer technical support for software purchases and access to future software updates as technology improves are also important considerations.

When asked about the most crucial products that are must-haves for a modern winery, Meloney of Microworks Technologies said, “At the very least, a winery will need a good CRM package with POS, club, ecommerce, inventory, and accounting software so it can leverage sales efficiently with the right tools to promote, track, and measure business goals.”

  Starr of VinNOW pointed out that crucial software needs vary with each winery because some only sell wine online, while others sell through retail, clubs, have tasting rooms, or incorporate a combination of these sales channels.

  But overall, for software or hardware, POS, club, cart, compliance, accounting, communications, and other products, Starr said that wineries “need products that work the way the winery wants to run their business, which are affordable and supported with great service and have the ability to grow with the business as the business grows and changes.”

Vahl of The Winemaker’s Database said that the most important type of software for a winery to have is anything that can help it reduce paperwork and be efficient and organized.

  “Winemaking is an art form, but it is also a craft, meaning the end product needs to be consistent each time,” Vahl said. “Software is an excellent tool because you can click a few buttons and gather the data instantly to view the numerous components of a blend.  Plus, since nobody enjoys paperwork, so it’s pretty handy to let your computer do the leg-work when it comes to providing the required reports to the government.”

How to Avoid Common Software Mistakes

  Meloney from Microworks Technologies said that many businesses make the mistake of not taking the time to learn the full capabilities of their software. This means that you might be missing out on important efficiencies that the software has to offer. Another common mistake he noted was inadequate hardware.

  “Can you image pulling a boat up a hill using a bicycle?” Meloney asked. “Recognizing the impact of outdated computer equipment on the performance and reliability of software can be the difference between success and failure of a software system.”

  To avoid future regrets, Starr of VinNOW emphasized the need for wineries to call multiple references with similar business demands and review the hidden costs and expenses of possible solutions.

  “Ask references about the surprises and difficulties they uncovered during the installation and first six months of using the solutions,” Starr advises. “Also, ask references about any shortcomings and strengths of features and service.”

  Vahl of The Winemaker’s Database said that a common mistake is looking for an entire software package from just one provider. For example, her company has specialized in wine production software for over 35 years and that is its primary area of expertise.

  “Often, wineries approach us looking for a software package from a single company that can do everything from vineyard management to POS,” Vahl explained. The areas of vineyard management, wine production, warehousing, accounting, point of sales, and wine club are vastly different from one another, which is why I am a fan of software interfaces. When companies work together to create interfaces, then they can offer some pretty amazing options to clients because they are each doing what they do best.”

Software Advice for Wineries

  Modern wineries rely on software for accuracy, efficiency, and to be competitive, but a software decision could either help or hurt your business. Therefore, it is advisable to talk to a few software companies to get a sense of how their products can work with your current operations.

  Meloney from Microworks Technologies advises wineries to know their business needs, be thorough, and check with as many references as possible before implementing new software for their operations. 

  “You don’t want to favor one department in the decision when it may cripple another,” Meloney said. “Make sure you are provided an in-depth demo of the features in detail. Know that what you see on the surface does not represent the software’s capabilities. Ask references about the vendor, not just the software, because the quality of your vendor is just as important as the software itself.”

  Starr of VinNOW’s main pieces of advice are to review your winery’s goals, assess the strengths and weaknesses of your team and location, and know what questions you need to ask software companies. He also recommends making sure a company has the features you need and to remained focused.

  “It is so easy to get distracted with features like customer photos in your POS and club, but since most of us don’t have facial recognition features, we end up finding out that a customer is a club member when we speak with them,” Starr said. “And every customer should get excellent customer service, so the feature sounds great but is not highly used.”

  “Then have a hands-on test-drive of the software,” Starr recommended. “If you plan to keep the solution for three to five years, dedicate a few hours per solution to truly see the depth of the solution and avoid picking the wrong solutions. Try adding a sale, changing the order mid-stream, cancelling an order, processing a club release, and managing returned packages and cancelled orders. Take the time to access reports that you need. Some solutions are strong in reporting but need a rocket scientist to use them. Ask how they meet ADA and PCI compliance and how they deal with D2C compliance and all the new tax reporting requirement and permits that are required.”

Finally, Vahl of The Winemaker’s Database advises wineries to start small and not try to resolve all of your issues right away because this is a common way that wineries end up paying too much for way more software than they really need.

  “I always recommend starting with the simplest form of the program and then adding on components as they are required, when users become accustomed to how the software works,” Vahl said. “Modular-based solutions are excellent for keeping costs down and also for helping wineries create a tailored solution for their operations.”

How Does Your Safety Program “Pair” With Your Workers?

repairman at maintenance work

With the intensity of the wine season gearing up and peak times just around the corner, how prepared are you to protect the health and safety of your workers? Protecting your employees is crucial to attaining your orchard and vineyard goals and having a successful operation. Having a solid and functioning safety plan in force results in better productivity, enables your workers to thrive and contribute to the performance of your business.  A good safety program is a win –win for everyone!

Regardless of the size of your operation, it is your responsibility as an employer, to have a safety program in place.  Depending on the size of your operation, your safety program may be informal or it may need to be more formal in nature – every winery is different. You’ll obviously want to abide by any government safety regulations that apply but there are also several safety management practices that will help you better demonstrate your commitment to safety, provide a safer working environment for your workers and yield you more efficiencies within your business.  It is not uncommon for a winery to produce a safety manual from an online template, issue it to their workers, briefly review it during a new employee training session and in turn, believe they have an effective safety program. Even though doing this is important, there are additional ways to visibly support your safety program to the point where it actually becomes “operationalized” into your day-to-day activities.  Outlined below you will find some of the ways we have found to be very effective to visibly demonstrate your support of your safety program.

Effective Ways to Promote a Safety Program at a Winery

Safety Policy and Program

  1. Draft a safety policy statement and sign it, better yet, have all of your supervisors sign it too.
  2. Make sure that your workers receive this policy statement either through an employee handbook, an employee bulletin board posting or through new employee orientations and meetings.
  3. Safety responsibilities should be formally assigned to a single individual to coordinate safety compliance efforts, accident investigation, and emergency procedures.
  4. Verify that appropriate safety responsibilities are also defined for everyone else.
  5. Work with either your insurance carrier or your insurance broker to establish an internal claims cost containment or return to work policy to reduce post-accident injury expenses.
  6. Hold supervisors accountable in annual performance reviews in part for safety objectives and/or the accident results of their workers.

Safety Rules and Standards

  1. Workers need to know how to safely do their job by having general work procedures and safety rules developed for your winery operation. High risk procedures like confined space entry, lockout / tagout, any work at heights, etc., need to be in writing.
  2. Safety rules are as important as any other part of your business. Write them so they are simple and easy to understand. Distribute them to all workers and have them sign an acknowledgment of understanding. Also post them in a common area as a reminder to everyone.
  3. Have a disciplinary system in place to deal with any safety rule violations.
  4. Develop a plan for winery emergencies like natural disasters and fires to make sure your workers know how to effectively respond in emergency situations.

Safety Training

  1. Make sure you have a safety orientation plan in place. Complete the orientation before workers begin a new job. Workers need hands on job training.
  2. Train your supervisory personnel so they can conduct safety inspections related to workplace safety hazards or applicable regulations in their area on a regular basis.
  3. Review your winery operations to determine the safety training needs for all work areas. This would include areas such as: emergency response to fire or injury, confined space, electrical safety, handling of chemicals, fall prevention and wearing of personal protective equipment, just to mention a few.
  4. Supervisory safety training sessions should be held regularly, addressing the following: accident investigation, conducting safety talks, understanding workers compensation, complying with government safety regulations, completing safety inspections, and controlling employee accident costs, as needed.

Safety Inspections

  1. Formal safety inspections should be conducted regularly by supervisors or other management staff. Document the results of these inspections.
  2. On a daily basis, supervisors should routinely conduct informal safety inspections with any negative findings documented and corrected.
  3. Consider developing customized safety inspection checklists for each area to ensure your inspections are thorough and consistent.
  4. Have a follow-up system in place to make sure that systematic corrective action is being taken on the deficiencies noted during safety inspections.
  5. Regularly update your safety inspection procedures and checklists by utilizing information generated in accident investigation reports so you can prevent recurring incidents.

Accident Investigation

  1. Have a supervisor (of the employee) investigate all injuries requiring medical treatment along with any “near misses” to make sure they don’t happen again.
  2. Maintain accident statistics about injuries that occur in your winery operation and review them regularly in management staff meetings. An accident occurring within your facility should be considered a significant winery operational deficiency and you should appropriately take corrective measures for each one.
  3. 3. Focus on fact finding, not fault finding to avoid attributing accident causes to employee carelessness or possible fraud on accident investigation reports. Identify the underlying root cause(s) for each accident.
  4. Have a first aid treatment procedure in place to help effectively reduce the severity of work-related injuries. You should include:
  5. a) A properly stocked first aid kit. The American Red Cross recommends: https://www.redcross.org/get-help/how-to-prepare-for-emergencies/anatomy-of-a-first-aid-kit.html
  6. b) Eye wash station(s). Grainger has an article describing where eye wash stations should be placed: https://www.grainger.com/content/qt-emergency-shower-eye-wash-stn-req-120
  7. c) Employees trained / certified in first aid. First aid training is often available through local organizations such as the Red Cross, local fire departments, EMS, etc. Check your local area listings.

Personal Protective Equipment (PPE)

  1. Conduct a hazard assessment of your winery operations to determine any personal protective needs and requirements for your workers. Make sure appropriate PPE is readily available to all workers, they are trained in its use and they follow all established requirements.
  2. Hold your supervisory personnel responsible for enforcing the use of PPE devices. This would include such items as safety glasses, proper footwear, gloves, and hearing protection, etc.
  3. On a periodic basis, review accident and inspection reports to evaluate the use or need for any additional personal protective equipment devices.

Motivation

  1. Demonstrate safety is a priority at your winery by holding regular meetings with your workers and supervisors to talk about any safety concerns. Keep minutes of each of these meetings with what was talked about and who attended.
  2. Have an “alternative duty” transitional work program in place to encourage injured workers to remain on the job in restricted capacity.
  3. Consider having a constructive policy in place to address workers who have had two more injuries or property damage accidents during any twelve-month period of time.
  4. Establish ideas and plans to motivate all workers to follow existing safety policies/procedures in an effort to achieve specific safety goals through such methods as personal recognition, bonuses, awards, etc.

Mechanical Safeguards

  1. Survey any high accident areas, materials, processes or buildings annually if you are having occurrences to specifically evaluate the adequacy of your equipment safeguards and/or OSHA machinery guarding compliance.
  2. Identify and provide appropriate signage where guarding is required. Develop procedures when guards are required to be removed for service or maintenance.
  3. If protected by interlocks or safety switch, inspect these systems regularly to verify that they have not been disabled or bypassed.

General Operating Conditions

  1. Maintain good housekeeping practices in all of your working areas so as to reduce slip, trip and fall hazards.
  2. Prohibit the climbing on racks in any storage or warehousing operations. Provide and encourage the use of sound, sturdy ladders.
  3. If forklifts are used, provide required training to all operators. Order pickers, if used, must work from an approved platform and wear appropriate fall protection.
  4. Tractors, mowers and other power equipment should be provided with appropriate rollover protective devices (ROPS).

Vehicle Safety

  1. Motor vehicle records should be routinely obtained for all new drivers and updated annually.
  2. Motor vehicle records should be evaluated using a defined point system for all drivers on an annual basis.
  3. A record of training should be maintained on file for all personnel who have access to and operate vehicles, farm equipment, vans or other powered equipment during the course of their employment.
  4. Accident reporting kits should be kept in all vehicle glove compartments.
  5. Drivers should conduct vehicle inspections daily.

Conclusion

At the end of the day, safety doesn’t need to be complicated. You can keep your program simple so that it meets the needs of your winery. Remember that:

  • Safety doesn’t happen without the person in charge and everyone else standing up and taking responsibility.
  • No one single person can be responsible for safety – more people making safety a priority correlated to fewer people being injured.
  • Stay with it – safety isn’t about written rules and handbooks, it’s about thinking about the potential dangers and what needs to be done to keep everyone safe.

By “pairing” these safety program components with what you and your workers do, you’ll be better prepared to meet the busy times ahead with safer and fewer injured employees. You, your employees and your business will all benefit!

  The information provided in this article is intended for general informational purposes only and should not be considered as all encompassing, or suitable for all situations, conditions, and environments.  Please contact us or your insurance professional if you have any questions. Products and services are offered through Markel Specialty, a business division of Markel Service Incorporated (national producer number 27585).  Policies are written by one or more Markel insurance companies. Terms and conditions for rate and coverage may vary.

For More Information Please Call Us At:

800-814-6773

Or Visit Our Website:

markelinsurance.com/winery

Is Your Facility Ready to Host Events?

By: Markel Insurance

glasses of wine in a buffet

As the spring season brings new life to the vineyards and offers opportunities of growth, so too are winery owners looking for new growth in their operations with increased sales.  Having a great experience at a winery results in improved customer loyalty, increased publicity and more sales.

One way to maximize your public exposure is by hosting events.   The activities can be small and simple such as an acoustic guitar on the back patio or larger concert exposures.   Events can include wine club dinners, fund raisers, vendor shows or weddings.

In planning for the events that will best suit your operations and facility, several key elements should be reviewed to help minimize losses and protect your assets.  Understanding your target market and what activities are best for you are as unique as each blend of wine.  Current markets have several popular events, including yoga stretch and sip; Wine Paint and Pour; Races through the vineyard or even a vendors “farmers market” offering local crafts and products.

There are the tried and true, more traditional activities expected at a winery with Crush or Harvest festivals, pickin’ party, club dinners and weddings/shower events.

You should consider the space needed based on the anticipated number of participants and any specialty needs, including tables & chairs or tents, rental equipment, caterer or DJ/vendors.

Once you have an idea on the type of event that will appeal to your demographics, a quick checklist can be reviewed.

Facilities Checklist for Hosting Events:

  • Is the use/occupancy rating for the property acceptable for the type of event?
  • Will you be able to provide adequate staffing for supervision?
  • Is there clear signage for acceptable vs restricted access areas?
  • Are there any ADA compliant concerns at the facility?
  • Based on the attendance expectations, will there be enough bathrooms, trash cans, water stations, shade/covered areas?
  • Are the electrical demands up to code? Who manages the setup and takedown for stage and dance floor exposures?
  • Is there emergency personnel on site?

Slip, Trips and Falls

Liability losses related to the facility most commonly relate to the slip, trip or fall category.  Not to underestimate the severity of what seems to be a simple loss cause, the following claim shows a good illustration of what can happen.

  Real-life claim example: A small concert event on a patio that required additional electrical power and resulted in cords running along the open patio.  A trip and fall occurred resulting in a fractured hip.  A surgery turned into an infection, causing a second surgery and extended recovery time.  With lost wages alone, the price was rising, and when finally settled to include medical, the shared cost was nearly $1.7 million.

Parking

Parking can be an often overlooked, but it is an important influence on the experience of the customer because it can be the first and last impression for any event.

Parking Factors to Consider

  • Is there adequate parking based on the number of attendees and is it easily accessible?
  • Always consider the path for emergency vehicle access (fire trucks, police cars, and ambulances).
  • Should local authorities be notified of the event and to help route the traffic flow in and out of facility.
  • Make sure the parking lot is clear of debris and free of obstacles with clear walking areas outside of traffic pattern.
  • Verify all areas of the parking log are well-lit for evening use and not susceptible to rain or vehicle being stuck.
  • Have clearly marked flow patterns and parking lanes help eliminate confusion and frustration.
  • Determine if you will have attendees directing traffic, or will be offering valet parking or any shuttle/transportation.

  Real-life claim example: Parking mishaps may leave you exhausted, or exhaust-less.  A vineyard/winery cleared a small lot to have as overflow parking for their outdoor event.  A small tree stump remained and although not a concern for the tractor or owners pickup truck, was not concealed enough to avoid damaging the exhaust systems of several customers that parked in the field lot.

Security

Depending on the size of the event, the responsibilities of the host grows with increased attendance.  When managing crowd control, do you rely on winery staff or opt for hired security.  Are there any weapons carried by other than law enforcement?  Do you hire off duty local law enforcement or an independent contractor.  Rules and procedure should  be clear relating to checking coolers and bags; not allowing any outside liquor; and restricted areas, especially where there is an attractive hazard, i.e. – open barns, fire pit, swimming pool/fountain/pond.  As an aside on fire, any open flame, fire pits, bon fires, outdoor grills, burgers and s’more’s cooker should be reviewed to make sure there are proper barriers, clear space and storage of combustibles.

Contracts and Certificates

Contracts and certificates should be in place for all vendors, caterers, artist, or instructors.  Each certificate of insurance should be from an  A rated or higher admitted carrier with limits equal to or greater than your limits, naming you as an additional insured, owner of premises.

Pets

People love their pets and pet lovers typically believe that everyone else should also be a pet lover, especially their pet.  From an insurance standpoint, it is not recommended to have pet friendly events.   If pets are allowed is there restrictions to be on leash or in designated areas.

Is the vineyard dog allowed to mingle in the crowd, “unsupervised?”

Know the difference between a professional service animal and a therapy pet and have clear rules so that you avoid an issue of selected acceptance or exclusion and can rely on your policy language.

Minors

Although minors may not be the norm for the tasting room, family friendly events can bring in a broad age range.   Have you crawled through your facility lately?  What may be obvious to an educated adult, may not be as clear to a child.  Locks and barriers are better than signs alone.  Have staff training to look for hazards and anticipate a lack of parental supervision.  Most wineries are not suitable as a daycare operation and should not have any childcare exposures.

Miscellaneous Exposures

  Evening Events: As a general rule of thumb, liability goes up when the sun goes down.  For many reasons, whether it be the time element of consuming more alcohol or just the visual difficulties to recognize hazards, losses are more likely as events run into the evening hours.   Having events that are shut down by 10:00pm would be considered a good practice and depending on your coverage carrier, may be a requirement.

  Cyber Security: Cyber / data breach coverage can include storing the credit card information for your club members, but can also apply to online purchases and any ticket sales for events.

  Private Events: When dealing with a special private event such as a Wedding or private party, clear contracts are the key.  The greatest frustrations come for unmet expectations.  Make sure all parties know what is being provided and what the expectations are for contracts, payment, timeframes or services.

  Real-life Claim Example: A facility that was not closed to the general public during a wedding event.  There was no clear detail on a separation of the wedding party areas vs the public access tasting room area.  In a clash of Party vs Public, tempers rose, words were cast and a white wedding dress is now a shade of cabernet.

Conclusion

This checklist is not all inclusive for all the unique elements to all event types.   The checklist should be a starting point for your facility.  Before hosting more events at your facility, review what type of events will be the best fit for your situation to provide a great experience for your guest.  Try to create events that will have a positive marketing buzz and will also increase your income while minimizing your exposures to loss.

The information provided in this article is intended for general informational purposes only and should not be considered as all encompassing, or suitable for all situations, conditions, and environments.

  Please contact us or your insurance professional if you have any questions. Products and services are offered through Markel Specialty, a business division of Markel Service Incorporated (national producer number 27585).  Policies are written by one or more Markel insurance companies. Terms and conditions for rate and coverage may vary.

For More Information Please Call Us At…800-814-6773, or Visit Our Website: markelinsurance.com/winery

Distributor Agreements: ‘Til Death Do Us Part?

By Brian D. Kaider, Esq.

Many early stage wineries market their products via tasting room sales, wine clubs, direct-to-consumer shipments and, to the extent permitted, self-distribution to local restaurants, grocery stores, and wine stores. Eventually, winery growth will necessitate working with a distributor, a relationship not to be entered into lightly. A distributor becomes an ambassador for the winery’s brand and, once retained, the supplier may have little control over how its wine is marketed. Further, these relationships can be difficult or financially impossible to break once established.

Supplier/distributor relationships are governed by franchise laws in many states. In the absence of franchise laws, the relationship is defined entirely by a distribution agreement between the parties. But, even in franchise states, the distribution agreement can play a critical role, particularly in the termination of the distributor relationship.

Too often, however, wineries accept a distributor’s “standard” agreement and when the relationship sours, the supplier finds that they are stuck with no viable option to terminate. The best practice is to engage an experienced attorney to negotiate the terms of the distribution agreement. While even the best attorney cannot evade state franchise laws (which generally prohibit a distributor from waiving its rights), there are ways an attorney may help bring balance to the supplier/distributor relationship. Some of the key terms to negotiate include termination, territory, brand scope, and exclusivity.

Termination

The most critical section of the agreement sets forth the manner and circumstances under which a supplier may terminate the distributor. In a franchise state, the law typically says that a supplier may terminate for “good cause.” If good cause is defined in the law, it is paramount that the distribution agreement mirror the language of the law, because in many cases, a contract that contradicts the law will be held invalid, leaving the supplier in the position of effectively not having an agreement at all.

For example, the Virginia Wine Franchise Act states that good cause includes “failure by the wholesaler to substantially comply, without reasonable cause or justification, with any reasonable and material requirement imposed upon him in writing by the winery.” Further, the Act provides, “good cause shall not be construed to exist without a finding of a material deficiency for which the wholesaler is responsible.” Tracking that language, a distribution agreement in Virginia should clearly define the distributor’s obligations, such as meeting certain performance goals, as “material requirements” and explicitly define certain actions, such as mishandling of the product, as “material deficiencies.”

When the law does not define good cause, and in non-franchise states, it is essential for the distribution agreement to do so. The contract should clearly set forth the distributor’s requirements that are critical to the business relationship and for which failure to perform will be grounds for termination. Examples of common requirements include: meeting specified sales and marketing goals, maintaining appropriate records and reports regarding inventory and sales, transporting and storing the product under specified temperature and lighting conditions, exercising adequate quality control measures to ensure product freshness, and paying invoices within a specified time frame. It is also common to include termination rights if the distributor is declared bankrupt, enters a voluntary petition for bankruptcy, enters into a compromise or agreement for the benefit of its creditors, or fails to maintain in good standing all Federal and State licenses and permits necessary for the proper conduct of its business.

In some cases, sale of the distributor or even a change in the ownership structure may be justification for termination. For example, if an acquiring distributor has a much larger portfolio, especially if some brands are direct competitors, the supplier may have grounds to object to the acquisition. While not always allowing a supplier to terminate the distributor, this period during which a supplier may object can provide an opportunity to negotiate with the new distributor to sign a more favorable agreement.

In some franchise states, a supplier must compensate the distributor for the lost business even if the supplier is able to terminate for cause. Sometimes the law simply says the supplier must pay the distributor the “fair market value” of the distribution rights. There can be an expensive battle just to determine that compensation if fair market value is not defined in the distribution agreement. Often, the value is defined as a percentage of the prior year’s case volume multiplied by some dollar amount per case. The “standard” contracts pushed by some distributors can be very severe in this section. In the beer industry, it is not uncommon to see values set at an entire year’s worth of profits times a multiplier that can range from 1.5 to many times higher. In practice, often a new distributor will buy out the distribution rights from the old distributor, but if the supplier wants to return to self-distribution, this buy-out provision may be cost prohibitive.

Territory

Depending on the size, experience, and reach of the distributor, there may be an opportunity to creatively carve out different territories. Territories are most commonly limited to certain states. However, a supplier may be able to limit a smaller distributor to certain counties or even specific types of establishments (grocery stores, but not restaurants, for example). One of the clearest breaches of the distribution agreement, that may constitute good cause for termination, is for a distributor to make sales outside of its contracted territory.

The growth of direct-to-consumer (DtC) sales is one of the biggest threats to the distributor’s business model in the wine industry. According to the 2017 Direct to Consumer Wine Shipping Report (www.dtcreport.com), the 2016 volume of direct-to-consumer wine shipments increased by 17.1% to 5.02 million cases. To mitigate this risk, it is becoming increasingly common for distributors to seek limitations on such sales within their territories in the distribution agreement. Since small wineries make up the fastest-growing segment of these DtC sales, they should carefully evaluate the business case for this type of restriction.

Brands

Generally, when a distributor is hired to carry a winery’s brand, it has the right to all of the products in that brand. But exactly what constitutes a “brand” is unclear both in the statutory language of most state franchise laws and in many distribution agreements. For example, Boordy Vineyards, the first commercial winery in the State of Maryland, sells three “series” of wines, a Landmark series, a Chesapeake Icons series, and a Sweetland Cellars series. The labels on the first two series includes the Boordy Vineyards logo (the name in gold lettering in a black rectangle), but the Sweetland Cellars wines do not (see below). In fact, the only indication that the Sweetland Cellars wines are made by Boordy is a statement to that effect in small print on the back label.

The question is whether the Boordy wines are all a single brand, two brands (one that includes the Landmark and Chesapeake Icons series, since they both carry the Boordy logo and the other being the Sweetland Cellars series, which does not), or three separate brands. Since Maryland does not have a franchise law with respect to wines, the parties are essentially free to define the brands as they wish in their distribution agreement. Failing to make an explicit definition can leave open to interpretation whether the agreement covers the winery’s entire repertoire of products or only a subset. That vagueness can be costly if a dispute arises between a winery and distributor. For what it’s worth, all of Boordy’s wines are managed by a single distributor, though it does hold back a few of the Landmark series wines for sale exclusively through the winery.

Maryland does, however, have a beer franchise law and while “brand” is not explicitly defined, the law appears to favor the distributor in terms of brand scope. Specifically, section 105 of Maryland’s Beer Franchise Fair Dealing Act prohibits a brewery from entering into a beer franchise agreement with more than one distributor for “its brand or brands of beer” in a given territory. One might argue that the language “or brands” means that the first distributor has the right to all brands of the manufacturer in a given territory. In fact, that very issue was litigated in the 1985 case of Erwin and Shafer, Inc. v. Pabst Brewing Co., Inc. and Judge Couch, writing for the panel of The Court of Appeal of Maryland, disagreed. The court held that if a brewery retained a distributor to handle one or more of its brands within a territory, it could not then contract with a second distributor within the territory for those same brands. It could, however, contract with a second distributor to carry a different set of brands.

How far the court would take its interpretation of what is a “brand” is unclear, however. In the Pabst case, the first distributor was given the right to distribute Pabst brand beers, but Pabst later merged with Olympia Brewing Company and gave the second distributor the right to sell its newly acquired Hamm’s brand beers. Whether the court would have allowed the brewery to contract with one distributor for Pabst and another for Pabst Extra Light it did not say.

Exclusivity

Even if rights under a distribution agreement cannot be divided by brand (as in the case of the beer franchise law in Maryland), some states may nevertheless allow a supplier to contract with more than one distributor within a territory. If permitted in their state, a winery should ideally enter into all of its distribution agreements for a given territory simultaneously, providing notice to each distributor. At a minimum, the winery should ensure that the first agreement entered into is explicitly designated as non-exclusive. Otherwise, the distributor may view the agreement as giving it exclusive rights to the territory and could sue the winery for diminishing the distributor’s business if it were to engage a second distributor in that territory.

Final Thoughts

Whether a winery is in a franchise state or not, it is critical that it review and negotiate its distribution agreements carefully, with the assistance of an experienced attorney. It is also important to remember that the supplier’s diligence does not end when the agreement is signed. No matter how well the terms of the distribution agreement are negotiated and drafted, they are effectively useless if the supplier cannot back up its claims for good cause. Accordingly, thorough documentation is essential. If a distributor is not meeting sales goals, mishandling product, or failing to provide adequate reports, they must be given written notice of those deficiencies each time they occur.

There are great distributors out there who become essential partners in a winery’s business. But, sometimes those relationships can turn sour and signing an agreement without anticipating complications down the line can make it virtually impossible to sever those ties. A little forethought and planning and a lot of diligence will go a long way toward a successful termination of a bad relationship.

Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.

bkaider@kaiderlaw.com
(240) 308-8032