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

The Most Common Types of Financing Available on the Market for your Business

By Angela Faringhy, Innovative Lease Services, Inc

Metal tanks in a row inside the winery factory

Let’s talk about money. In order for your agricultural and wine business to grow – sufficient funds are needed to take on projects, making purchases and expanding your operations to become more efficient and in turn make more money. It sounds so simple, right?

Business owners, both small and large, often go to banks for financial assistance. While banks are one avenue for support, they are not the only establishment. I am here to share with you the most common types of financing you’ll come across and whom you can get them from.
As commercial financing experts working in the industry for over 30 years, we would like to share with you the most common and beneficial financing programs out there on the market for small to medium sized businesses. From cold cash to needing to purchase equipment to restocking inventory and supplies – discover which financing product closely matches your business’s needs.

Equipment Financing and Leasing
– How to get New Equipment

When the situation arises where your business needs to purchase equipment, you don’t have to pay cash to buy it outright, you can finance it. Tractors, stainless steel tanks, destemmers, computer systems and items like table and chairs are all examples of equipment that doesn’t need to be updated frequently and therefore can easily be financed, under the product name, Equipment Financing.

The entity supplying the funding (also known as a Lender) basically purchases the equipment from the supplier and rents the equipment back to the Lessee (your business) for a low monthly fee. At the end of the lease the Lessee has the option to purchase the equipment for as little as $1 or start a new lease for the latest and greatest equipment models. Leases range from 12-72 month terms and can include seasonal payment provisions to help match the cash flows of your business.

By leasing your equipment you also preserve your cash and pay for the equipment over the life of its use. Example a new high producing destemmer costs $40,000 or three new oak casks will come in close to $55,000. It’s hard to fork over the dough when your business is tight on funds. With Equipment Financing you can invest your saved money into other facets of the business or keep safe for future endeavors.

Where to get Equipment Financing: Shop Private Lenders or local credit unions for best programs.

Working Capital Loans
– How to get Cold Cash

Loans are one of the most common forms of business financing. The Working Capital Loan is designed as a short-term solution for those businesses in need of money to help run operations on any scale.

Whether you need to meet routine expenses or pay for new business endeavors, the Business loan is essentially a cash infusion into your bank account that can be used for literally any business expense.

Most commonly working capital is used for growth, debt and inventory (just one or a mix of all 3).

Growth – Utilize capital to expand operations, create a new product line or launch a marketing campaign to drive more sales.

Debt – Use funds to pay delinquent taxes or pre-pay taxes, cover payroll needs, or pay off any other form of high interest debt the business has collected.

Inventory – Stock up on goods that contribute to your bottom line such as; brand new bottles, yeast, boxes, oak barrels, supplies, wine club swag etc.

Where to get a business loan: Lenders, banks and the SBA (application process to qualify).

Invoice Factoring
– Also Known as the Cash Advance

Having seasonal cash flow fluctuations can be a major issue when trying to grow a business. What I mean by this is if a business invoices a customer and in turn gets paid weeks after services are rendered or goods are shipped, there is a lack of consistent cash flow or immediate exchange of money for services. That business will still have to pay up front for supplies and labor, but the valuable cash flow is tied up in invoices leaving the bank account empty. One effective way to solve the cash flow crunch is with Invoice Factoring.

Invoice factoring is simple in how it works:

1. You sell your invoices to a factoring finance provider (like ILS).

2. Factoring provider advances you up to 95% of the invoice amount in 24 hours or as quick as same day.

3. Factoring provider collects full invoice amount from your customer(s).

4. Once your customer pays the factoring company (1 week- 6 months etc.) You get the remaining balance (minus a small factoring fee).

Many companies that often invoice other businesses have found invoice factoring to be an effective and consistent financial strategy for their business – keep reading to learn why.

Unexpected Expenses

Just about every business faces the surprise and stress of an unexpected cost and there isn’t enough cash on hand to manage. Invoice Factoring allows a business to quickly cover those unexpected costs.

Extension of Billing Department

It is common for back offices to struggle with keeping up on billing and collecting from customers. Or if your accounting department isn’t effective in making sure payments are received on time. Many Invoice Factoring partners act as an extension of your billing department so you can eliminate a headache of chasing down payments and focus on other things.

Essentially a cash advance, it’s your money you are just getting it faster!

Where to get Invoice Factoring: Specific Lenders whom offer Invoice Factoring Programs

You may be wondering what about investors, angel funds, cash advances, lines of credit, etc. We have not listed those as we find our customers often come to us in distress after taking on this type of obligation. There are many setbacks with giving away a portion or selling your soul to investors. Also, opening up to many business lines of credit (credit cards), can be a very dark hole to try and climb out of.

Equipment Financing, Working Capital Loans, and Invoice Factoring all have some commonalities and that is they each save your business thousands in capital, apply and receive funding as quick as same week, and most importantly save you from some serious financial mishaps that you may not be able to recover from.

Given that every business is unique, make sure to first consider all of your needs and options. We are a commercial lender and provide custom Equipment Financing Programs, Working Capital Loans and Invoice Factoring Programs. We are available for a free consultation to help you discover what financing product fits your business needs.

For more information visit
Innovative Lease Services, Inc.
online at www.ilslease.com

The Real Benefits of Financing: What are My Options?

By Angela Faringhy, Innovative Lease Services, Inc.

Financing Versus Equity Financing

Banks, Lenders, and Investors (oh my!) all exist because we fellow businesses need them. They sometimes can be the fine line between succeeding and closing the doors for good. Each of these entities, holders of large sums of money, provide capital.

In order to build new wineries, buy new equipment, develop new products, and upgrade information technology, businesses have to have money.

Banks, Lenders and Investors each have different financial structures and costs associated with using their money – also known as their “cost of doing business”. The beginning of the year is a popular time for companies to seek out financing assistance due to restructuring or restrategizing operations. No matter the goal, preparation and knowledge is the key to success.

Money Comes with a Price

Money is what we use to buy goods and services. There are many forms of monies in the world but here in the US we use the US Dollar. Not every dollar is treated equal. As a matter of fact every dollar, depending on where it comes from has its own price tag.

The cost of capital refers to your cost of making a specific investment and what you make in return. The basic formula for Cost of Capital is:

the amount of money (cost) and capital (cash) or
another infusion of equity into your business =
your businesses expenses and how much
you pay for it

Generally, business owners will not invest in new projects unless the return on the capital investment is greater than the cost of the capital. The cost of capital is key to all business decisions.

Continue to read up on the two most common ways a business can acquire money; Financing versus Equity Financing.

Equity Financing

Equity in business is the portion of the company’s assets that belong to the owners or stockholders. If a company uses funds provided by investors, then the cost of capital is known as the cost of equity.

Investors, angel funds, venture capitalists etc., all fall under the equity financing umbrella. In summary a business gives up a piece of their company’s equity to purchase cash to expand business and operations, essentially giving up a portion of ownership stake. These investors don’t actively participate in the daily management of the company, but they are active in strategic planning in order to reduce risks and maximize profits.

A popular example is the hit television series Shark Tank. Startup and established businesses alike come on the show seeking financial help, and are willing to negotiate a percentage stake of their business for a monetary investment from the “Sharks.” This is actually the most expensive form of financing. Here is an example why.

Let’s use John’s Packaging, a startup product packaging business. John needs about $100,000 for additional equipment and expenses to really get his business going. John finds an investor willing to provide the $100,000 in return for 20% stake in the company. Let’s fast forward five years, and John’s Packaging is a success valued at $5 million dollars. The 20% stake has grown to a value of 1 million dollars. That is a 1000% return on investment, great for the investor, not so great for John. In conclusion, John received all of the money he needed initially but later down the road realized the true value of what he had given up early on in the game.

Equity Financing is a top choice for a startup who is not necessarily pulling in monthly income quite yet and needs financial assistance to get operations up and running.

Financing

Referring to the cost of capital, Financing is known as cost of debt in the financing world. The word debt gets a bad rap, but it really shouldn’t always be considered a negative. Debt is when the borrower is required to repay the balance by a certain date. Good debt is an investment that will grow in value and generate long term income.

Equipment Financing and Leasing, Working Capital Loans, Cash Advances, and Invoice Factoring are the main products under the financing umbrella.

Financing is provided by lenders and banks. The cost of debt is the interest rate paid by the company on the financing amount. Interest rates are determined by a combination of elements; the current state of the market, how long a business has been operating, risk factors, credit scores, bank history and amount needed. An advantage is the fact that interest rate expenses are tax deductible and therefore more tax-efficient than equity financing. This form of financing is also able to provide services to a broader range of businesses across all industries with a variety of financial histories.

Financing differs from equity financing in that a business may acquire capital without giving away any portion of the business and essentially is utilizing a line of credit. Financing programs are structured to have fixed monthly payments over a 2 or 5 year horizon. You always know going in what your cost is going to be.

John’s Packaging, an 8 year old company needs capital to pay for replacement equipment costing $100,000. John qualifies for an Equipment Financing Program from a Private Lender, whom will provide all $100,000. In return John makes monthly payments for 24 months (also known as the terms) until the $100,000 is paid off. At the end of the term John owns the equipment and still owns 100% of his business.

Financing is a top choice for businesses who are in operation and can make the monthly payments.

In Summary

Partnering up with an investor is expensive, however investors can also provide invaluable industry expertise that may not be available from other resources.

Financing on the other hand is a shorter term investment to help boost business without restructuring or including more hands in the profit share.

The take away is for each and every business to spend time evaluating its true needs, and the potential cost of bringing an investor into the mix or taking out a line of credit.

Innovative Lease Services is a commercial lender and provider of custom Financing Programs.
Visit www.ilslease.com
or call 800-438-1470
for more information.

Adding a Financing Arm to Your B2B Business “aka” In-House Customer Payment Plans

By Angela Faringhy, Innovative Lease Services, Inc

With majority of business processes automated – payment plans are more readily available than ever before. This includes business goods, services, and consumer goods – almost everything under the sun can be financed.  With that being said it is crucial for a business to offer payment plans for products and services to keep up with competition and most importantly grow sales and increase revenue.  Commonly, a customer that wants or requires a finance option is often not going to share that with whom they are purchasing from. Keep in mind, 100% of your customers that pay cash are already doing so. So suppliers offering a financing option have the chance to convert more existing prospects into buyers.  As a private lender in the B2B space, read more to discover why one of the biggest mistakes a supplier or wholesaler of equipment can make is not providing alternative payment solutions to customers.

Customers will go to Competitors

When a business is greatly in need of business equipment and does not have the funds for it, they will always opt for an affordable option or a supplier whom offers payment plans.

A simple example: a winery’s 7 year old sprayer has given its last spray. The winery simply cannot afford not to get another sprayer immediately. Bugs, fertilizer, amongst other factors contribute to a ruined crop in a very short amount of time. And with no flexible budget to purchase a top of the line brand new machine outright – the winery will seek a supplier who provides some sort of payment plan because they cannot take the hit of such a financial burden at once, so unexpectedly. Next, the winery finds a supplier who lets them make small monthly payments for 24 months. This particular supplier whom offers payment options reaps the benefits of both worlds, selling to those businesses who cannot pay in full and those who can!

Customers Will Buy Less, When They Could Buy More

A grape grower is shopping for a new ripper in order to replant a diseased section for upcoming seasons. The grower is a repeat customer of S.C. Agriculture Equipment & Services, and wants to buy the same model ripper previously purchased. They have the money and are ready to pay in full. However S.C.’s Equipment offers financing now for all equipment and takes the opportunity to tell the grape grower about their new line of premium rippers. The premium line has new technology for better more efficient soil results. These rippers start at $5,000 more than the growers past model. However with payment plan options the grower can now afford one of the premium rippers! They decide to finance in order to upgrade to the higher end ripper. S.C. Agriculture Equipment & Services increased profits on an already secured customer.

Making all equipment affordable by different means of payment arrangements makes room for upselling and in turn more profit!

Common Concerns

Most commonly a business supplier of equipment will not have the financial resources to provide products upfront without being properly reimbursed at the time of transaction. Or typically the business does not want to take the risk of providing payment plans, which can have complications including; customers defaulting on their payments which leads to having to chase down the customer to get the equipment back, or taking further legal action. Thank goodness for collections!

Commercial Lenders and Equipment Leasing

This is where 3rd party Commercial Lenders come into play. A Commercial Lender is a financial institution which provides Financing programs that help support and increase the sales of their Vendor partners. These plans are commonly known as Vendor Financing, In-house Financing, White Label Financing, etc. Here, the lender acts as the de-facto financial arm for the Vendor and provides financing to its customers.

This becomes a real win-win-win for all three parties involved in the transaction. The Vendor gets to make the sale, the Lender gets to gain a new customer, and the end-user gets the equipment they need at the monthly payment that fits their budget.

Customers will experience significant benefits when financing with an independent lender, including speed of approval, limited or no financial information required, and the ability to structure custom payments and terms. For companies that have less-than-perfect credit, an independent lender is often the best solution as the credit windows are often significantly larger. What does this mean for the equipment supplier? Fast transactions and happy customers!

The typical Vendor Financing Program utilizes an Equipment Lease. The entity supplying the funding (also known as a Lender) basically purchases the equipment from the supplier and rents the equipment back to the Lessee (customer) for a low monthly fee. The lease can include cost of equipment, tax, shipping, installation and training. At the end of the lease the Lessee has the option to purchase the equipment for as little as $1 or start a new lease for the latest and greatest equipment models. Leases range from 12-72 month terms and can include seasonal payment provisions to help match the cash flows of the business.

For a customer that wants to own the equipment, most Independent Lenders will provide an Equipment Finance Agreement (EFA) whereby the customer is the owner of the equipment at the onset and the Lender is a Secured Party.

Wait…What About Banks?

Keep in mind, most bank loans will come with a requirement for a significant down payment, often as high as 10-20% of the equipment cost. And, bank loans usually only cover the equipment itself and do not include the installation, shipping, tax, and other “soft costs.” Timing is another factor that can greatly slow the process down. Banks can take weeks to decide on a loan approval for customers. Most importantly, a Bank does not lock in the specific Vendor into the transaction the way and Independent can, meaning your customer can take that approval to your competitor. ILS does not recommend sending customers to banks to get financing for business purchases.

Finding a Financing Partner

With many commercial lenders providing vendor programs, it is important to do the homework and research a partner whom can make the process as simple, seamless and speedy as possible. Most importantly seek out a partner that protects your sale throughout the process and does not charge you anything to be a partner – at ILS we call this “a no strings attached partnership.”

At ILS we have found that Vendors who did not previously offer a financing option can increase their prospect conversion rate by over 10%. Remember, most prospects are already sold on your equipment solution but unless they are a cash buyer they may not have the resources. By controlling the financing, you further control your sales.

About the Author:

 Innovative Lease Services, Inc. (ILS) is a private lender specializing in Vendor Financing Programs specifically in the agriculture, winery, brewing, and distilling industries. For more information or to enroll in the Vendor Program please call: 800-438-1470 or visit www.ilslease.com/equipment-lease/offer-financing.

Brokers See Themselves as ‘Bridge’ Between Growers, Wineries

By Jim Offner

Wine and grape brokers insist that their role transcend that of simple intermediary between grower and winery. Some involved in the process go so far as to eschew the term “broker” in describing what they do to bring the parties together.

“I don’t like the word broker; it sounds like a used car salesman, somebody who’s taking advantage of somebody who doesn’t know anything,” said Shannon Gunier, co-owner of Lower Lake, California-based brokering firm North Coast Winegrapes. “I like the word concierge because they help you find your way.”

Gunier, who, along with husband Rick, started her business in 2010, said the couple operates as the “eyes and ears” of their customers. “Use a broker if you’re unfamiliar with the region you’re buying from, you’re new in the business, and you don’t know where to get your fruit or bulk wine,” she said.

What to Expect From a Broker

Whatever the precise term, a broker’s job is multi-faceted, Gunier said. That includes finding the right wine grapes, bulk wines or shiners (finished wines that arrive at a winery unlabeled).

Brokers can also lead their customers through a complicated decision process, Gunier said. “First, make yourself a little familiar with what you’re trying to buy and what flavor profile you want.”

Expertise is stock and trade of the sharp broker, said Jim Smith, owner of Lakeport, California-based Case By Case Wine and Grape Brokers Inc. “Someone like myself who’s been around and has the connections and a third-party endorsement from a proven professional carries a lot of weight with buyers,” Smith said. “I can make a call and tell the winery, ‘If you have time, come up and look at this; otherwise, just go with me on this, and you’ll be glad.’”

A grower “who doesn’t know anybody” might cold-call a winery and try to sell grapes, but that tack rarely works, Smith said. “[A grower will say] ‘You want to take a chance on me?’ [The winery will} say no,” said Smith.

It’s also central to the broker’s job to be on top of all market trends, growing conditions, and supply issues, said Todd Azevedo, domestic broker for Ciatti Co., a global wine and grape brokerage firm based in San Rafael, California. “In any climate or economic terms, we have the most up to date info in today’s wine and grape world,” Azevedo said. “[We know] what’s going on import/export-wise, [and with] supply and demand. We have the most accurate information when you’re trying to sell your wine or grapes.”

Going through a broker isn’t required, of course, said Michael Colavita, owner of Stockton, California-based shipper F. Colavita & Son.  “Somebody can come to California and make a deal with a grower, and whatever product he comes up with, he ships it out.” Indeed, one winery operator who requested anonymity said he doesn’t need a broker. “I suppose there’s a place for it,” he said. “if you’re a bigger winery and you can afford it and don’t want to do a little work yourself, then fine. Or, if you’re going out of the country, you wouldn’t have the knowledge or resources to do it. But, If I’m knowledgeable about anything, why go through a third party?”

On the other hand, there are times when a grower isn’t equipped to or knowledgeable about how to ship their product, Colavita said. Brokers can work with shipping companies like Colavita & Son who have this know-how.

What to Consider When Choosing a Broker

Brokering grapes and wine is, above all, about relationships, Azevedo said. “Especially in the wine business, which is especially small around the world, it’s based on relationships and whom you believe will steer you in the right direction,” he said.

Having “eyes and ears” in “all major winegrowing regions” is a big advantage for the Ciatti Company’s clients. “We have 52 dedicated employees, a network of brokers. It’s up to us to discuss what’s happening in all these realms,” he said. “We’re involved in every region on a day-to-day basis.”

A broker who knows a lot about wine and everything that goes into the growing, buying and selling of grapes, has to be gifted in creating trusting relationships, Smith said. “It’s about personal relationships and trust. And trust is key.”

Integrity and a willingness to build lasting relationships between buyer and seller is a must for a successful broker, Smith insists. “I am very confident in stating we’re probably the most honest, we don’t try to hide anything,” he said. “We like everybody to show up at the vineyard and meet and greet. If you’re as trusted as we are, you can’t put a number to that value. If you’re a grower and have spent $120,000 on your operation, you need that trust.”

Gunier agrees that choosing a broker requires the right fit: “It should be somebody you have a rapport with. This is their biggest expenditure.”

A little research always is helpful, she said. “What they want to do is due diligence. Call them and ask questions,” she said. Test a broker’s efficiency, Gunier urges. “Order a sample of something and see how long it takes to get it,” she said. “If it takes long or they don’t respond, you’ll know. You’re sending money to somebody you don’t know, after all.”

A buyer or seller might be tempted to go with the most prominent brokers, but that’s not necessarily the best route, Smith said. “Of course, I would imagine most people, their first thought is let’s go with the biggest outfit, but if you’re not one of the biggest growers and you don’t have 500 tons to sell, they’ll give you a number,” he said. “Do you have 500 tons to sell? That’s great. They know they’re going to make a good chunk of money. I’ve always been a big proponent of the small to mid-size grower. I prefer to get a little more personal with the small or mid-sized grower and tend to shy away from the 500- to 1,000-ton growers.”

Reputation, not size, is what to look for in a broker, Smith said. “If you ask around, wherever you are, and a broker is not doing the right thing, somebody will know about it sooner or later,” he said. “It’s a small world and tiny industry. We all run in the same circles.”

Colavita said, as a shipper, he offers other advantages to customers. For example, he points to storage facilities that his company owns. “The advantage, since I own my own facilities, my staff can tell me these grapes won’t hold up, so don’t ship them out,” he said. “Let’s call it a hands-on type of operation. Of course, you’re dealing with Mother Nature; you never know what she’s going to do.”

A good broker can help minimize mistakes, Colavita said. “To deal with somebody who’s had a reputation of doing it right is an advantage, so they have confidence they’re going to get a suitable product for their needs.”

Customers anywhere can access Colavita’s services. “My customers are all over the country. I have some smaller California wineries who rely on me for a certain grape,” he said. “But, I have customers from here to Maine and Florida – all over.”

Brokers deal in the bulk-wine, processing and storage markets in addition to the growing sector, and that macro-view is essential, Azevedo said. “I’m trying to lessen the lumps of the economy, so you can go to your bank, investors and family and make wise financial decisions,” he said.

Know What You Want

Choosing the right broker depends on several factors, including whether a winery might be looking to buy “local” grapes, or find a product that isn’t available nearby. “People want to buy local, but they also want to buy Chardonnay, Merlot and Zinfandel because that’s what the market is drinking,” she said. “If the winery is familiar with the market and knows what’s local, they can do those deals direct. There probably aren’t many brokers able to provide that service outside of California.”

Case By Case supplies wineries inside and outside California, Smith said. “I think we’re in 27 states across the country now. If somebody wants a longer-term agreement for out of state that doesn’t have the highs and lows, it will be a little less money per ton, but a long-sure road.”

Brokers can help growers to develop a workable price for their product, Smith said. “There’s another type of grower that tries to take every penny,” he said. “They ask us to get this outrageous price. I try to talk them off the edge. Sometimes, they come in at the 11th hour and say we’ve just got to sell the fruit. They slash their price at the last minute. I’ve told them, don’t go for the throat; go for the profitable long-term contract.”

Contracts: To Do or Not To Do

Rules regarding broker contracts vary widely, Azevedo said. “Everybody is different,” he said. “There are some erroneous contacts where nobody wants the liability. The bigger, the more onerous the contacts get.”

It’s important to examine the so-called “boilerplate” in a contract because one never knows what it might contain, Azevedo said. “As a broker, you need to read through the fine print. Looking for hidden fees or penalties is a big deal. It’s so drastic across the board. I could send you four contacts and all the same price, but you go through the boilerplate it’s all drastically different.”

What a contract stipulates might hinge on various factors, Gunier said. “It depends on what you’re talking about,” she said. “If you’re talking about wine grapes, the broker will provide a contract; you make sure you have a contract in place. Ask the broker, ‘Send me a finished bottle of a product from a winery in your area, and I can see what that tastes like.’ I think it points to the fact that you have to have good grapes to have good wine. “

Gunier said she’ll next-day air-freight grapes to a client, but that’s just part of the picture.

“We take pictures all the way through,” she said. “We have people come out and talk to the growers. That’s kind of our niche.” It’s a kind of match-making business, Gunier said. “We try to match the winery and grower, and all that comes in the contract – when we’re going to pick, when we’ll ship,” she said. “How much damage should there be when you get the fruit? What if half is damaged? You have to have all that lined out in a contract.”

Smith said he likes to see “a couple of simple things” in contracts.

“Number one, our contracts are two pages,” he said. “I’ve seen corporate wineries with 14-page contacts. If they have 14-page contracts, they’ve had a team of lawyers that draw that up in their favor. I don’t mess around with those type of agreements. I tell the growers, ‘You make the decision.’” An example of an unfair agreement is one that might stipulate a “brix range,” with a per-ton penalty for anything outside the limits but no clause that reimburses the grower for a loss of fruit weight due to dehydration at the winery. “I won’t be party to that kind of agreement,” Smith said. “By sticking to my guns, 27 years later, I still don’t have to clock in and work for somebody else.” Any deal carries risk, and a broker should be willing to share in it, Smith said. “When those grapes show up like I said they would, I will expect your business every year,” he said.

Colavita said he hardly ever has contracts. “It’s all done through emails and confirmation of orders, that sort of thing,” he said. “The buying end of it, some of it is on a contract basis, some is yearly – it’s all over the board. Most of this business is just word of mouth.”

Negotiations Can Vary

Deal negotiations can vary, Azevedo said. “Any given year it can be different. We deal in a real-time market. This year, it’s strictly a buyer’s market. Demand is fairly low. Supply is steady, but because demand is so low, it feels like there’s a lot of grapes and wine on the market. So, growers at this point are looking for a deal, an offer from somebody to say yes or no to, because of the timing of the situation.”

Timing is crucial, where negotiations go because markets shift capriciously. “It depends on what time of season and where you are, other buyers in the vineyard, the economy, what’s happening on the international market and the bulk-wine market, what’s happening with cannabis, beer, coffee, whatever the preference is in that world,” Azevedo said. “In agriculture, especially, you’re up against time, because grapes are a perishable product.”

Some brokers will work for a basic commission; others don’t, Gunier said. “We don’t work that way; we purchase fruit from growers and sell it,” she said. “We take some of the risk away from growers.”

Larger brokers are more likely to work on a percentage basis, Gunier said. “Those are big guys who can work on two percent selling 80 tons; our minimum order is six tons, which is a third of a truck.”

In negotiations, there are times when a grower needs to have a feel for the right deal, and the wrong one, Smith said. “In a hot market, say Cabernet Sauvignon, I’d say the power leans to the grower,” he said. “His price keeps going up. I’m on the back side of that, and I warn him not to push too hard, or he might lose a long-term buyer. When the market is in the tank, there were grapes on the vine because the tanks were full, growers were offering $350 a ton for their grapes. I was able to go around with a handful of growers we were working with and [find out what] they needed to break even and make a very marginal profit.”

Smith said his company’s customer retention is right at 99 percent, so it’s doing something right. “Working closely with our buyers, understanding what they need and trying to accomplish it – that’s our specialty,” he said.

When are Multiple Brokers Needed?

There may be times to call on more than one broker, but the odds are, a grower ultimately will come to rely on one, Azevedo said. “Personal opinion here: Because it’s a relationship-driven business and you’re building confidence in a person to be a partner in what you’re trying to achieve, it’s probably best to deal with only one,” he said. “As a winery, you’d be doing yourself a disservice if you don’t find out what the market is and what you can achieve. As a producer, I want to make sure I cover all my bases, in order to have all the information. Lo and behold, you’re probably going to go back to the same person who has given you all the information over and over again.”

Whether to work with more than one broker depends on the circumstances, Gunier said. “I think you should work with people who are willing to work with you,” she said. “You have to navigate your way through that.”

Going “local” with a broker might be the right solution in some circumstances, Gunier said. “The guy I’d be concerned about is the guy who can get you anything from anywhere,” she said, laughing.

A large-scale vineyard might bring in multiple brokers, Smith said. “If it’s a 1,000-acre vineyard, you might consider working with at least a couple brokers,” he said. “You might find you like one more than the other.”

Tariffs, Tariffs, and More Tariffs

By Dan Minutillo, Esq.

Toward the end of this week, take a minute to add up and total the amount of US tariffs imposed on Chinese goods imported into the US. You can glean this data from online aggregated digital news, television news, or from US Government pronouncements about Trump tariffs.

I would be very surprised if the number does not exceed hundreds of billions of US dollars encompassing about half of all Chinese manufactured goods entering the US. The public comment period for most US-China tariffs to be imposed to date ended this past Friday so that such tariffs can be imposed by the US Government and will either be at 25% or 10% depending on the Chinese manufactured product.

China and the US, up to this point, have enjoyed a robust trading partner experience. China is the most active trading partner with the US at about $500 billion of Chinese goods sold to the US last year. These US-China tariffs to be imposed on our most active trading partner are meant to hurt the Chinese economy for alleged unfair trade practices, misappropriating US intellectual property, and generally misbehaving in the world of international trade to the detriment of the US. China has threatened to match and retaliate against the US with equal trade sanctions on US products.

Options

US companies have four (4) primary options to avoid these Trump lead tariffs on imported Chinese goods:

  1. Find a supplier and manufacturer other than China for the goods;
  2. Pay the tariff as the importer of record;
  3. File for a US Customs classification arguing that these tariffs do not apply to its goods imported from China; or
  4. Apply for exclusion from these tariffs.

Context

For context, the exporter of record is the company or individual who is listed on export documentation as the person or entity moving product from country “A” to country “B”. The country of export is the place which the product moved from.

A product could be subject to a US-China tariff even though the product was not exported from China. Products manufactured in China (made in China) are subject to the Trump tariffs even if those products took a circuitous route to reach the shores of the US.

The importer of record is responsible for paying these Trump tariffs on Chinese goods. The importer of record is usually the buyer or distributor of the imported goods, so, 1 through 4 noted above are options for the importer of Chinese goods, that is for the US company importing Chinese goods into the US.

If the US importer decides on option 2, that is to pay the tariff as the importer of record; then it has two primary options:

  1. To absorb the cost of the tariff thereby cutting into profits; or
  2. To increase the price of the product subject to the tariff and pass this increase, either in full or in part, onto its customers thereby risking market share.

USHTS Codes

How do you determine if a product is subject to Trump’s US-China tariff?

This is where it gets a bit tricky. The “Lists” of products subject to US tariffs on China’s products are categorized by the United States Harmonized Tariff Schedule (USHTS) code system. This system categorizes products by product type and then provides multiple subcategories with further particular specified descriptions. The object is first to find the general product category on the USHTS code schedule and then continue to drill down to subcategories on this schedule until a full description of the subject product is found.

A clear, simple and definite example of a USHTS code is for laptop computers which fit into USHTS 8471.30.01.00 as automatic data processing machines that are portable, with certain weight restrictions. This USHTS code categorization is easy.

However many of the USHTS categories are confusing, to understate. For example, run a web search for “Clocks and Watches US HTS Code” and then compare the HTS data and codes that appear relating to a watch which you own then try to determine the exact US HTS code for that watch. This exercise will give you an idea about how difficult it could be to determine USHTS code and then to determine if a product is covered on one of the US-China tariff lists with high US tariff ramifications based on the USHTS code.

Requesting a Customs Classification

If a company is not sure where their product fits in the USHTS Code classification system, it can submit a description of the subject product with backup data requesting that US Customs provide an HTS classification for that product. US Customs will evaluate the information provided and assign a USHTS Code for that product. The company then merely looks at the USHTS Code table and the applicable US-China tariff lists to determine the applicable tariff amount, if any, for that product.

Requesting an Exclusion

If it appears that the product is subject to the Trump US-China tariff, the US Government has established certain procedures in the event a company believes that its product should be excluded from the US-China tariff. In order to qualify for such exclusion, in addition to following the procedures outlined in the Government’s pronouncements about exclusions, the company must prove that:

  1. The product is only available in China; or
  2. The duties imposed would cause “severe economic harm;” to the company; or
  3. The product is not strategically important to China or related to Chinese industrial programs including, in particular, the Chinese program “Made in China 2025.”

As noted, the US Government has instituted an avenue for clarification of the HTS code for a product and an avenue to request exclusion if a product appears on one of the US-China import tariff lists. Neither avenue might satisfy the company struggling to pay or “pass on” a high US-China tariff to its customers, but at least these avenues provide an opportunity for relief.

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Dan has practiced law in Silicon Valley since 1977. The Firm’s practice is limited to regulatory law, government contract law, and international trade law matters. Dan has received the prestigious “Silicon Valley Service Provider of the Year” award as voted by influential attorneys in Silicon Valley.He has represented many very large global companies and he has worked on the massive US Government SETI (Search for Extra Terrestrial Intelligence) project as well as FOEKE (worldwide nuclear plant design certification), the Olympic Games, the first Obama town hall worldwide webinar, among other leading worldwide projects.

Dan has lectured to the World Trade Association, has taught law for UCLA, Santa Clara University Law School and their MBA program, lectured to the NPMA at Stanford University, and for the University of Texas School of Law.

Dan has lectured to various National and regional attorney associations about Government contract and international trade law matters. He has provided input to the US Government regarding the structure of regulations relating to encryption (cybersecurity). He has been interviewed about international law by the Washington Post, Reuters and other newspapers.

He is the author of four books unrelated to law, one of which was a best seller for the publisher, and of dozens of legal articles published in periodicals, technical and university journals distributed throughout the world. He serves as an expert witness in United States Federal Court regarding his area of expertise.

MINUTILLO’s e-newsletter and all of its content is provided for information and very general purposes only. It is not intended to provide or offer any specific or general legal advice, or to create an attorney-client relationship. Before acting or relying on any information provided in this e-newsletter, consult an attorney who is an expert in the appropriate field of law.

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Protecting Your Business From Employee Poachers

By Brian D. Kaider, Esq.

You’ve been in business for several years and have a dozen hard-working, dedicated employees working for your company, or so you think.  Out of the blue, a new competitor enters the market and the next thing you know, all 12 of your employees have jumped ship to join the new firm.  With them, they have taken company records and customer lists.  What do you do?  Do you have any legal recourse against the poaching company? Against your former employees?  How could you have prevented this?

Can a Competitor “Poach” Your Employees?

In most states, yes.  Many people are surprised to learn that, generally, poaching is a perfectly valid and legal way to find new employees. There are exceptions and limitations, of course, but the overall policy favoring poachers is that courts do not want to unduly restrict a person’s ability to seek employment in a competitive marketplace.

An Ounce of Prevention is Worth a Pound of Cure

The best defense against poachers is to create an environment in which your employees are happy and will be reluctant to leave.  That does not necessarily mean having the highest salaries in your business, though compensation is certainly one factor.  More important, though, is creating a culture of inclusion, where employees feel that they are valued members of a team, where they are challenged and know they will be rewarded for excellent performance.

Contractual Protections

There are many types of agreements that can help prevent poaching, but they generally fall into two broad categories; non-compete agreements and non-disclosure agreements.  These may be stand-alone contracts, or may be integrated as clauses in an employment agreement.

  • Non-Compete Agreements: Can be a valuable asset in protecting your workforce, because if certain conditions are met, a poaching company may be liable for “tortious interference of contract” between you and your employee. But, the first element of that legal claim is the existence of a valid contract. There’s the rub.  Many states, California in particular, disfavor non-compete agreements as an undue restriction on someone’s freedom to seek employment.  So, these contracts must be drafted carefully and narrowly tailored to your company’s specific circumstances so as not to create an unfair burden on the employee.

For instance, if you are in an industry where you have dozens of competitors within 20 miles of your business, then a restriction in your employment agreement prohibiting a departing employee from working for a competitor within 5 miles of your business might be considered reasonable.  But, if you have only one competitor in your state, and that competitor is 10 miles away, then a restriction in your employment agreement prohibiting a departing employee from working for a competitor within 20 miles would almost certainly be deemed unreasonable by the court.

  • Non-Solicitation Agreements: One form of non-compete agreement, however, is much more readily enforced; a non-solicitation agreement. This contract prohibits a departed employee from attempting to convince other employees to leave. While this can be very helpful in preventing a mass exodus, here too, the restrictions must be reasonable.  A prohibition from contacting other employees for six months following termination would more likely be enforced than such a prohibition for five years.  Note, however, that this agreement applies only to the departing employee; it does nothing to prevent the competitor from contacting more of your employees directly.

Even in the absence of a written non-solicitation agreement, in most jurisdictions, a current employee has a duty of loyalty to his/her employer.  This duty prohibits an employee who plans to leave from soliciting co-workers to leave at the same time.  The employee may, however, announce his departure and if co-workers approach him to inquire about the new employer, that is not a violation of the employee’s duty.

  • Non-Disclosure Agreements: While it may be difficult to prevent an employee from going to a competitor, often it isn’t the departure of the employee itself that is of concern to the employer, it’s the risk that the departing employee will provide confidential or trade secret information to the competitor. Fortunately, non-disclosure agreements are very common and widely enforceable.

There are many types of confidential and trade secret information, such as client lists, marketing and distribution plans, growth strategies, pricing structures, recipes, business methods, etc.  These are all valuable assets that should be protected by non-disclosure agreements with your employees.  The key to successful enforcement of these agreements, however, is that you yourself must treat the information as confidential and secret.  This means limiting distribution of the information within your organization to only those who need it to perform their jobs and not disclosing the information to anyone outside the organization (except lawyers, accountants, and other service professionals you have hired to support your business).  Further, you should ensure that hard copies of confidential information is kept under lock and key and electronic records are password protected with as few employees having access as is practical.

What Can You Do?

One or more of your employees has left for a competitor; what do you do?  First, take a breath.  You can’t keep all of your employees forever, people will come and go.  So take stock: how much does this departure hurt your business?  Did the employee have access to confidential or trade secret information?  Was the employee close friends with any of their coworkers in your employ?

If the employee has given you notice, but not left yet, meet with them.  Let them know they will be missed, but remind them of their duty of loyalty while they remain with you.  Identify the confidential information they have been privy to and discuss what may and may not be communicated to their new employer. If the employee received hard copies or electronic files that you consider confidential or secret, ask the employee to sign a sworn statement that they will return or destroy all copies.  If the employee is unwilling to sign such a statement or gives you indicia of hostility toward you or your company, consider terminating them on the spot.  Depending on the circumstances, you may have to pay their salary if you have a contractual notice period for termination, but at least they will have no further access to your confidential information or direct communication with your other employees.

If the employee has already left and you believe that they have taken confidential or trade secret documents and/or provided such information to their new employers, you must act quickly in order to protect your rights.  Below are some examples of legal actions to take.

Breach of Contract

If you and your employee had a written contract (non-compete or non-disclosure) you can take legal action against the employee for breach of contract.  You will need to demonstrate three elements: the existence of a valid contract, that the terms of the contract were violated by the former employee, and that the breach caused or will cause economic harm.  As discussed above, particularly for non-compete agreements, the contract must be reasonably drafted for the court to consider it valid.

Tortious Interference with Contract

If there is a valid contract with the employee, you may also be able to take action against the competitor for tortious interference with the contract.  This cause of action has five elements that must be satisfied:  1) the contract must be valid, 2) the competitor must have knowledge of the contract, 3) the competitor must intend for the new employee to breach the contract, 4) the terms of the contract must actually be breached, and 5) you must be damaged by the breach.

The second element, requiring actual knowledge of the contract by the competitor may seem a little tricky.  As a first step before filing a legal action, you can send the competitor a cease and desist letter describing the nature of the contract (non-compete, non-disclosure, etc.) and how you believe that contract will be violated by the competitor’s continued behavior.  If the competitor continues, then you can proceed with the legal action and your letter will provide proof of actual knowledge of the contract.

The most difficult element of the claim is that of damages.  In cases where you can directly tie the breach to a loss in sales, economic damages may be easy to define.  That is seldom the case, however, so seeking equitable remedies such as preventing the employee from working for the competitor may be a better approach.

Breach of Duty of Loyalty

In the absence of a non-compete/non-solicitation agreement your employees still owe you a duty of loyalty.  While the language may vary state to state, essentially the employee owes a duty to act with good faith in the furtherance of the employer’s interests  If a departing employee actively solicits others to join the new company, copies files to bring to the new company, deletes or sabotages data to inhibit your business operations, or otherwise acts in a manner that is hostile to your company, they violate this duty.  Damages may include lost profits and also punitive damages if you can demonstrate that the breach of duty was willful.

Misappropriation of Trade Secrets

Though the language of what constitutes a trade secret varies state-to-state, it is generally information that 1) is not known to the public, 2) derives independent economic value, and 3) is subject to secrecy, meaning that you have to actively maintain its secrecy.  The classic example of a trade secret is a recipe, such as the formula for Coca-Cola® or the Kentucky Fried Chicken® secret blend of 11 herbs and spices.  But, the general skills, knowledge and expertise an employee acquires through experience in the field, even while working for you, are the employee’s assets, not yours.  So, pricing information committed to their memory through servicing your clients is not protectable.  But, if they access and download a password protected pricing strategy on the company’s server and bring that information to a competitor, that would be a misappropriation.

Unfair Competition

Although poaching employees is generally a legitimate and legal business practice, there are limitations. For example, except in very specific and highly skilled fields, it is uncommon for one company to employ all of the competent people in the field.  So, while it is not per se illegal to recruit more than one employee from a competitor, engaging in a pattern of solicitation of a single company’s employees may be evidence of intent to destroy the competitor’s business or a crucial department thereof and may be actionable unfair competition.  To prevail on an unfair competition claim, you must demonstrate that the loss of key personnel will harm the company and that the competitor intended to drive you out of business. For example, if the competitor offers salaries to your entire sales team that are well-above market rate, that may be evidence of a bad faith attempt to cripple your business.

Summary

The law generally favors a person’s freedom to seek employment and is skeptical of efforts to restrict that freedom.  Nevertheless, an employer has the right to loyalty from current employees and is protected from efforts to unfairly undermine its business by stealing secret information or luring away its entire workforce.  Whether concerned with protecting trade secret information from departing employees or exposure to legal liability when recruiting a competitor’s workers, early consultation with an attorney is always a wise approach.

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

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

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.”