Category: Legal

Permit-Required Confined Spaces

Cyndi
Occupation Safety and Health Act

By: Steven R. Sawyer, ARM, MS, CSP

As many employers have learned over the last few years, employees are a valuable resource.  The ability to find and keep employees has become a challenge for many employers in a variety of industries, including food and beverage agriculture.  Therefore, keeping employees safe is a top priority.

  Employers in the food and beverage agriculture industry, like vineyards and wineries, may have multiple confined spaces in which employees encounter in their daily job tasks.  These include vats, tanks, storage bins, tunnels, duct work, pits, drain systems, and liquid tanks and containers.  Many industry employees are required to enter these spaces as part of their jobs.

  Occupational Safety and Health Administration (OSHA), in their Permit-Required Confined Spaces standard 29 CFR 1910.146, describes a confined space as a space that is large enough for an employee to bodily enter and perform assigned work tasks, has a limited or restricted means of entry or exit, and is not designed for continuous employee occupancy.  Additionally, OSHA defines a Permit-Required Confined Space as a confined space with one or more of the following characteristics:  the confined space contains or has the potential to contain a hazardous atmosphere; the confined space contains a material that has the potential for engulfing the entrant; the confined space has an internal configuration with inwardly converging walls or a floor that slopes downward and tapers to a smaller cross section which could trap or asphyxiate an entrant; and contains any other recognized serious safety or health hazard. (OSHA.gov)

  The first step in protecting employees from the hazards of confined spaces is to evaluate the workplace to determine if the workplace contains permit-required confined spaces.  An initial survey or workplace evaluation should be conducted to locate and identify all confined spaces.  This initial workplace evaluation should be conducted by a qualified person who is familiar with the hazards and types of confined spaces.  Although this is the initial step, workplace evaluation must be ongoing for confined spaces which may change over time with the addition of new processes, equipment, or facilities.

  Once a confined space is identified in the workplace, the confined space should be treated as a hazardous area until a qualified person can determine the specific hazards.  Additionally, the qualified person will determine if the confined space is a permit-required confined space or a non-permit confined space.  Hazards an evaluator will look for include atmospheric hazards such as oxygen deficient or toxic atmosphere, biological hazards, mechanical hazards, physical hazards, and chemical hazards.

  If the qualified person has found permit-required confined spaces at the workplace, the employer must notify the employees.  Employees must know their workplace contains permit-required confined spaces, where the spaces are located and the hazards associated with those spaces.  Then, the employer must post signage to inform the employees of the permit spaces.  This signage can read “Danger – Permit-Required Confined Space, Do Not Enter” or a similar statement.  The signs should be posted on the entrance or in close proximity to the entrance of the permit space.

  At this point, an employer has a decision to make about their Permit-Required Confined Spaces:  either allow employees to enter or do not allow employees to enter.  If the employer makes a decision to not allow employees to enter permit spaces, then the employer should take effective measures to secure the spaces.  Some examples of securing permit spaces to prevent entry are padlocks, bolts, chains, and wire cables.

  If entry is necessary for employees to service or clean permit-required confined spaces, the employer must develop and implement a written permit-required confined space program and make the program available for employee inspection.  This written program should include written entry procedures for the permit-required confined spaces along with the hazards present, and how to eliminate or control the hazards. 

  The written permit-required confined space program should include an entry permit.  The entry permit is a document to be used for all permit-required confined space entries.  The entry permit should include the date of entry and authorized duration of the entry, the location of the entry, the names of all entrants, and the work that is being conducted in the confined space.  Additionally, the permit must include the names of attendants, the name of the entry supervisor, the hazards present in the space to be entered, how the hazards will be eliminated or controlled before entry, acceptable entry conditions, results of initial and periodic tests performed along with the names of the testers and when tests were performed, rescue and emergency services to contact in the event of an emergency, communication procedures between the entrant and the attendant, equipment necessary including personal protective equipment, testing equipment, communication equipment, alarm systems, and rescue equipment, other information deemed necessary for safe entry, and any additional permits such as hot work permits.  Lastly, the permit should have a signature line for the entry supervisor to authorize the entry, including the date and time of the entry.  The entry supervisor should communicate the contents of the entry permit to the authorized entry personnel and may wish to post the entry permit in a designated location.

  OSHA requires that employers provide training for all employees who must work in permit-required confined spaces.  The training should occur before the initial work assignment, when job duties change, employee performance deficiencies occur, or when the permit-required confined space program changes or operations change.  Although it is not required to train all employees to the extent of the authorized entrants training, it is a best practice to inform all employees of the confined spaces present in the workplace and the hazards that accompany the confined spaces.  

  If entry is required in a permit-required confined space, the employer must provide an authorized entrant (the person who enters the space and conducts maintenance or cleaning operations), an attendant (a person who remains outside of the confined space), and an entry supervisor (the person who oversees the entry operations and ensures the entrants follow the permit and are safe).  These personnel have specific duties that must occur to ensure safe entry into permit spaces.  Their duties must be followed in order to comply with the OSHA Permit-Required Confined Spaces standard.

  When the entry into the permit space is complete, the entry supervisor terminates the confined space entry.  The entry supervisor can also cancel the entry of the confined space if the conditions within the space are no longer safe for the entrant.  As a best practice, when the entry is complete, a debrief should be conducted with the entry personnel to determine if any changes are needed for future entry procedures.  Employers are required to keep canceled entry permits for one year.  Any deviations or problems with the entry should be noted on the canceled permits.

  Even with a permit-required confined space program in place, emergencies can happen.  It is important that local emergency responders are aware of the specific hazards associated with confined spaces in the workplace.  Invite local emergency agencies to the workplace and evaluate their knowledge of confined space rescue, their rescue equipment, and their capabilities. 

  Having a permit-required confined space program in place will help vineyards and wineries avoid catastrophic incidents and costly OSHA citations.  To learn more about Permit-Required Confined Spaces, go to osha.gov or ansi.org.

  Steven R. Sawyer, ARM, MS, CSP, is the owner/operator of LSW & Associates Safety Consulting Services, LLC.  Sawyer has been active in the safety industry since 1999, much of that time working with multi-faceted, high-hazard agribusinesses, developing a special expertise in grain bin engulfment and prevention; OSHA grain handling standards; lockout/tagout (LOTO); machine guarding; confined spaces; heavy equipment and specialized equipment operations; and safety program development and training.

Website:  sawyersafetysolutions.com

Should I Open Up a Claim?

Cyndi
close-up of a plant crop

By: Trevor Troyer, Agricultural Risk Management

When to open up a claim on your grape crop insurance is important.  A lot of growers say that don’t know if they have a payable loss early in the season.  With grape crop insurance you are covering an average of your production per grape variety. Depending on what coverage level you have chosen this could mean you have a large deductible or small one.  I agree it is hard to tell how much early season damage will affect tons harvested.

  Mid May this year there was a bad freeze/frost event in the Finger Lakes region of New York.  While late spring frosts are not uncommon, this one was really bad.  There was widespread damage to grape vines across the Finger Lakes.   The extent of the damage is not fully known at this time.  But there will be a reduction in the tons harvested this year for sure.

  In a situation like the above a claim should be opened immediately.  More than likely, due to the severity of the frost, an adjuster will come out and inspect the vineyard.  I always tell growers that they should take pictures of the frost damage that morning.  It is always good to document damage as close to the time it occurred as possible.

  It may be that some varieties of grapes show more damage than others.  This is to be expected as some are more resistant to cold.  And from what I have seen over the years with frost and freezes is that it doesn’t affect a vineyard or field evenly.  You might have more damage on one side of the vineyard or more damage on the lowest part of the blocks etc.  Damage varies but just because one variety or one area looks better than others doesn’t mean that you should not open a claim on that variety or block.

  I know that secondary and tertiary buds will emerge in the next few days or weeks after a freeze.  You should open up a claim now regardless.  The damage may be less than you think and you don’t end up having a payable claim.  But it is still best to get one opened up right away.  Don’t wait to see how many tons you harvest before opening a claim! 

  Here is an excerpt from the “How to File a Crop Insurance Claim” Fact Sheet from the USDA:

  Most policies state that you (the insured) should notify your agent within 72 hours of discovery of crop damage.  As a practical matter, you should always contact your agent immediately when you discover crop damage.

  That same night in May, that saw the frost/freeze in the Finger Lakes region, also saw damage to vineyards along the coast of Lake Erie.  I received calls and emails from growers stating that they had had frost as well.  Obviously, the damage was not as bad as the Finger Lakes, but frost on new buds is not something any vineyard owner wants to see.  I opened claims for all of them even though the extent of the damage was not known.

  I cannot stress enough the importance of opening up a claim early. 

  A lot of claims with grapes are relatively routine.  Once the claim is opened an adjuster will come out and document the damage.  You will continue to grow your crop and try to mitigate any damage received. Once you harvest grapes you will meet with the adjuster and give him your production records that show your tonnage per variety.  He will then adjust the claim based your guarantee (average tons per acre per variety and the price for that variety in the county.)

  In some circumstances you will need to get direction from the adjuster before doing anything.

What are your responsibilities after damage if the grapes have not matured properly and will not?  What if they have been rendered unusable (smoke-taint has been a major cause of this in California)? 

  Here is a section from the Grape Crop Provisions that goes over this:

11. Duties in the Event of Damage or Loss.

In addition to the requirements of section 14 of the Basic Provisions, the following will apply:

(a) You must notify us within 3 days of the date harvest should have started if the crop will not be harvested.

(b) If the crop has been damaged during the growing season and you previously gave notice in accordance with section 14 of the Basic Provisions, you must also provide notice at least 15 days prior to the beginning of harvest if you intend to claim an indemnity as a result of the damage previously reported. You must not destroy the damaged crop that is marketed in normal commercial channels, until after we have given you written consent to do so. If you fail to meet the requirements of this section, all such production will be considered undamaged and included as production to count.

  It is important to stay in contact with your adjuster during a claim.

  A lot of things can happen to your vines that could cause them not to produce a full crop.  The insurance period is long and it is important to report everything that may reduce your crop.

  When you sign up for crop insurance, coverage for grapes starts on February 1 in Arizona and California.  It begins on November 21 in all other states.  The end of insurance unless it is otherwise specified by the USDA RMA, is October 10th in Mississippi and Texas, November 10 in Arizona, California, Idaho, Oregon and Washington.  In all other states the end of insurance is November 20th.  Crop insurance is continuously in force, once signed up for, unless cancelled or terminated.  Your coverage for following years, will be the day after the end of the insurance period for the prior year.

Here are the Causes of Loss per the Grape crop provisions:

(1)   Adverse weather conditions;

(2)   Fire, unless weeds and other forms of undergrowth have not been controlled or pruning

       debris has not been removed from the vineyard;

(3)   Insects, except as excluded in 10(b)(1), but not damage due to insufficient or improper

       application of pest control measures;

(4)   Plant disease, but not damage due to insufficient or improper application of disease control

       measures;

(5)   Wildlife;

(6)   Earthquake;

(7)   Volcanic eruption; or

(8)   Failure of irrigation water supply, if caused by an insured peril that occurs during the

       insurance period.

  Adverse weather conditions could be anything that could cause damage to your grapes. For

example; drought, frost, freeze, excess moisture etc. Wildlife could be bird damage, deer etc.

Fire would also include smoke taint as that is a result of a fire.

  Crop insurance does not cover, the inability to sell your grapes because of a buyer’s refusal or contract breakage. It also doesn’t cover losses from boycotts or pandemics. Phylloxera is not covered, regardless of the cause. Overspray or chemical damage from a neighboring farm is not covered either.

  So, get those claims opened up early and stay in contact with your agent and adjuster.

Uncorking Accessibility

Cyndi

Ensuring Your Website Complies With the ADA

Americans with disabilities act

By: Vanessa Ing, Farella Braun + Martel

In today’s digital age, having an online presence is crucial for businesses, including wineries, breweries, and other beverage companies. Accordingly, it’s essential to ensure that your beverage website meets federal standards for accessibility to avoid lawsuits and fines. In this article, we will help beverage companies understand how to comply with federal law and implement accessible features on their websites.

Why is Web Accessibility Important?

  In 1990, Congress enacted the Americans with Disabilities Act (ADA). It prohibits businesses open to the public (otherwise known as “public accommodations”) from discriminating against people with disabilities in everyday activities. These everyday activities can include purchasing goods and services, or offering employment opportunities. 

  In March 2022, the U.S. Department of Justice issued web accessibility guidance, reiterating that ensuring web accessibility for people with disabilities is a priority for the Department. Relying on the ADA’s prohibition against discrimination and its mandate to provide equal access, Department of Justice emphasized that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web. The Department of Justice’s guidance was particularly timely given that many services moved online during the pandemic. 

  In its guidance, the Department of Justice explained that people with disabilities navigate the web in different ways: for example, those with visual impairments might require a screen reader that reads aloud text to the audience.  Those with auditory impairments might require closed-captioning software, while those with impaired motor skills might require voice recognition software.  A website, therefore, should be compatible with the full range of such software. 

Is Your Beverage Company a “Public Accommodation” Business?

  Public accommodations include businesses that sell goods and services, establishments serving food and drink, and places of recreation or public gathering.  Companies that sell drinks, wineries that offer a tasting room, or breweries that host events are all considered public accommodations.  Thus, those businesses’ websites must comply with the ADA by being accessible to people with disabilities. 

  It is an open question whether beverage companies without a physical location open to the public must still have ADA-compliant websites. Some jurisdictions, like the Ninth Circuit (which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), have tied the necessity of ADA-compliant websites to the existence of a brick-and-mortar location (Robles v. Domino’s Pizza, LLC). However, the Department of Justice, along with several federal circuit courts of appeals, has taken the position that even a public accommodation business without a physical location must have an ADA-compliant website. 

  Given the increased prevalence of online-only services open to the public, it is very likely that litigation over the next few years may resolve this open question.  In the meantime, it is wise for beverage companies to take preventative caution and ensure that their websites are accessible. 

What are some Website Accessibility Barriers?

  To ensure ADA compliance, beverage companies must be aware of common website accessibility barriers.  These include poor color contrast, lack of descriptive text on images and videos, mouse-only navigation, and more.  By addressing these barriers, beverage companies can enhance the user experience for people with disabilities.

  Six examples of website accessibility barriers highlighted in the DOJ’s accessibility guidance include:

•    Poor Color Contrast: Ensure sufficient color contrast between text and background to aid individuals with visual impairments or color blindness. Use color combinations that are easy to distinguish.

•    Use of Color Alone to Give Information:  Avoid using color alone to provide information.  Using color alone can be very disorienting for someone who is visually impaired or colorblind.  Someone who is colorblind might not be able to distinguish between shades of gray.  One solution might be to ensure that symbols conveying information are differently shaped.    

•    Lack of Descriptive Alternative Text for Images and Videos: Provide descriptive text (alt text) for images and videos, allowing screen readers to convey the information to visually impaired users. This makes your content more accessible and inclusive.

•    No Closed Captions on Videos: Include closed captions for videos to accommodate individuals with hearing impairments. Utilize manual or automatic captioning options and review the captions for accuracy.  Free options are available on the web.

•    Inaccessible Online Forms: Make online forms user-friendly for people with disabilities. Provide clear instructions before the form, ensure that a screen reader could recognize required fields and fields with special formatting, ensure keyboard-only navigation, use accessible labels for inputs, and display clear error messages.  Note that an image-based CAPTCHA is not a fully accessible way to secure your form; your CAPTCHA should offer users who are visually impaired an audio alternative.

•    Mouse-Only Navigation: Enable keyboard-only navigation on your website to assist individuals with motor skill impairments or those who cannot use a mouse or see a mouse pointer on the screen.  Make sure all interactive elements can be accessed using the tab, enter, spacebar, or arrow keys.  Use a “Skip to Main Content” link to ensure that users employing only a keyboard can easily navigate the website’s primary content. 

  To implement these features, beverage companies should discuss accessibility concerns upfront with the web developer.  Beverage companies should keep in mind that posting a phone number on a website to call for assistance, as commonly utilized by businesses, does not sufficiently provide equal access to the website and the services or goods provided.

Who can Sue Beverage Companies?

  Non-compliance with ADA standards can lead to potential lawsuits.  Although some courts have held that a nexus must exist between a private plaintiff’s disability and the web accessibility barrier claimed, a private plaintiff may easily surf the web for websites that are inaccessible.  A private plaintiff may then file a lawsuit in federal court without first notifying the business.  Further, liability under the ADA is strict, which means that the intent of the business to comply is immaterial.  Thus, it is prudent for beverage companies to proactively address accessibility issues to avoid potential legal troubles. 

  Private lawsuits under the ADA can result in injunctive relief (a court order to comply with the ADA) and attorney fees.  And in some states, like California, the state law version of the ADA may enable plaintiffs to demand monetary damages ($4,000 per violation of the ADA). 

  Government involvement, while less frequent, is possible in cases involving national retailers.  If the Department of Justice observes a pattern or practice of discrimination, the Department will attempt to negotiate a settlement, and may bring suit on behalf of the United States. At stake are fines of up to $75,000 for the first ADA violation, and up to $150,000 for each subsequent violation.

What are the Rules for Website Accessibility?

  Although the ADA itself does not spell out the rules for website accessibility, several sources provide detailed rules that can aid beverage companies in building accessible websites. 

  First, the ADA authorizes the Department of Justice to enforce the statute.  Accordingly, the Department develops and issues regulations explaining how businesses must comply.  Specifically, § 36.303 of the Electronic Code of Federal Regulations specifies that a public accommodation shall provide auxiliary aids and services when necessary to ensure effective communication with people with disabilities, and that a public accommodation should consult with people with disabilities whenever possible.  The Department also issues administrative guidance, such as its March 2022 guidance described above.  

  Second, Section 508 of the Rehabilitation Act of 1973, which requires federal agencies to make their electronic and information technology accessible to people with disabilities, provides detailed guidance concerning the display screen ratios, status indicators, audio signals, and other accessibility features. 

  Third, the Web Content Accessibility Guidelines 2.1 (WCAG 2.1), which were originally designed by a consortium of four universities, provide highly specific web accessibility guidelines grounded on the idea that information on the web must be perceivable, operable, understandable, and robust.  These guidelines are widely referenced in court cases and settlements with the Department of Justice, as the guidelines address numerous aspects of web accessibility and offer three different levels of conformance (A, AA, AAA). Beverage companies can consult the WCAG 2.1 guidelines (including a customizable quick reference guide, at https://www.w3.org/WAI/WCAG21/quickref/) to ensure their websites meet ADA compliance. 

Looking Ahead

  Web accessibility standards evolve over time, with updates being released periodically. Beverage companies should stay informed about changes and updates to ADA compliance regulations. For example, the WCAG 3.0 is scheduled for release in the latter half of 2023, further refining accessibility guidelines.

  In sum, by understanding and identifying web accessibility barriers, and implementing necessary accessibility features, beverage companies can enhance user experiences and minimize the risk of legal repercussions. Embracing web accessibility is not only legally required but economically prudent in the long run, as it enables beverage companies to cater to a broad and varied audience, and demonstrates a commitment to inclusivity in the digital realm.

  Vanessa Ing is a litigation associate with Farella Braun + Martel and can be reached at ving@fbm.com. Farella is a Northern California law firm representing corporate and private clients in sophisticated business and real estate transactions and complex commercial, civil and criminal litigation. The firm is headquartered in San Francisco with an office in the Napa Valley that is focused on the wine industry.

The 21st Amendment Enforcement Act & Retail Sales in Interstate Commerce

Cyndi
man holding gavel

By:  Brad Berkman and Louis Terminello, Greenspoon Marder

Direct to consumer (“DTC”) sales of wine and other beverage alcohol from out of state shippers is presumably here to stay, at least from the perspective of retail shippers. The Granholm decisions, as most readers are familiar with, burst open the door to DTC sales by suppliers and in particular winemakers. Wineries, with and without distribution in the various states, took advantage of the new opportunity and began shipping direct to consumers outside the sacrosanct three tier system.  In addition to winemakers, other business types began to sell their beverage alcohol wares in interstate commerce, directly to consumers in states other than their home markets. Retailers, in particular, have grown substantial sales revenue streams from selling to consumers outside of their home markets via the internet. Of course, third party e-commerce platforms have turned the three-tier system and interstate sales on its head through highly creative and not always beverage law compliant sales strategies often at the disdain of state regulators. Recently, some states have turned to legislation passed in October of 2000 to bring enforcement actions against out-of-state entities that seemingly violate their laws on the importation and shipment of beverage alcohol across their borders. The purpose of this article is to introduce the reader to this twenty-three-year-old piece of legislation known as the 21st Amendment Enforcement Act, some of its key provisions and its recent use by certain states.

The Act-What is it?

  The 21st Amendment Enforcement Act, (the “Act”), became law in 2000 and effectively amended the Webb Kenyon Act of 1913. The act allows for states attorneys general to bring civil actions in federal court against parties that import or transport beverage alcohol into a state in violation of the Act and the states laws.  Certain provisions of the law are printed below that are worth looking at, however, it is not necessary to reprint the full Act to understand its effect and implications, In a nutshell, the Act permits a state’s attorney general, to move for an injunction against the offending party to force cessation of the activity complained of that is in violation of a state’s beverage law. It is worth noting that relief in federal court takes the form of injunctive relief. The Act, as drafted, does not allow for states to bring actions, or impose monetary fines for violations brought under it. Further, nothing in the Act prevents states from bringing actions in state courts for violations of its beverage laws.

Certain Provisions of the Act Are:

      SEC. 2004. TWENTY-FIRST AMENDMENT ENFORCEMENT.

      (a) SHIPMENT OF INTOXICATING LIQUOR IN VIOLATION OF STATE LAW.—The Act entitled ‘‘An Act divesting intoxicating liquors of their interstate character in certain cases”, approved March 1, 1913 (commonly known as the ‘‘Webb-Kenyon Act”) (27 U.S.C. 122) is amended by adding at the end the following:

      SEC. 2. INJUNCTIVE RELIEF IN FEDERAL DISTRICT COURT.

(a) DEFINITIONS.—In this section

(1) the term ‘attorney general’ means the attorney general or other chief law enforcement officer of a State or the designee thereof;

(2) the term ‘intoxicating liquor’ means any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind;

(3) the term ‘person’ means any individual and any partnership, corporation, company, firm, society, association, joint stock company, trust, or other entity capable of holding a legal or beneficial interest in property, but does not include a State or agency thereof; and

(4) the term ‘State’ means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States.

(b) ACTION BY STATE ATTORNEY GENERAL.—If the attorney general has reasonable cause to believe that a person is engaged in, or has engaged in, any act that would constitute a violation of a State law regulating the importation or transportation of any intoxicating liquor, the attorney general may bring a civil action in accordance with this section for injunctive relief (including a preliminary or permanent injunction) against the person, as the attorney general determines to be necessary to—

(1) restrain the person from engaging, or continuing to engage, in the violation; and

(2) enforce compliance with the State law.

(c) FEDERAL JURISDICTION.

(1) IN GENERAL.—The district courts of the United States shall have jurisdiction over any action brought under this section by an attorney general against any person, except one licensed or otherwise authorized to produce, sell, or store intoxicating liquor in such State.

(2) VENUE.—An action under this section may be brought only in accordance with section 1391 of title 28, United States Code, or in the district in which the recipient of the intoxicating liquor resides or is found.

(3) FORM OF RELIEF.—An action under this section is limited to actions seeking injunctive relief (a preliminary and/ or permanent injunction).

(4) NO RIGHT TO JURY TRIAL.—An action under this section shall be tried before the court.

(d) REQUIREMENTS FOR INJUNCTIONS AND ORDERS.

(1) IN GENERAL.—In any action brought under this section, upon a proper showing by the attorney general of the State, the court may issue a preliminary or permanent injunction to restrain a violation of this section. A proper showing under this paragraph shall require that a State prove by a preponderance of the evidence that a violation of State law as described in subsection (b) has taken place or is taking place.

  Over the past few years some states have brought actions under the Act aimed at perceived violators. It is indeed worth taking note of these actions and to bring them to the attention of readers who may be sending alcohol beverage products into these states. Emphasis should be added that states have not often relied on the Act to enforce its laws against allegedly illegal transport and shipment of beverage alcohol but we are likely to see more actions by states brought under it.

Tennessee and Ohio

  This past July, Tennessee’s Attorney General brought an action for an injunction in federal court against six out of state retailers. These retailers were shipping distilled spirits, not wine, to Tennessee consumers in violation of that state’s beverage laws. It should be noted that those sued were out-of-state internet retailers, that allegedly sold distilled spirits without a license and were untaxed by the state. The retailers included Bottle Buzz, Cask Cartel, and others.

Ohio

  Ohio was the first state to make use of the Act. Its Attorney General filed a complaint and motion for a preliminary injunction in federal court in the Southern District of Ohio against several out-of-state retailers including Wine.com and Ace Spirits. The attorney general argued that the illegal shipment by out of state retailers takes business aways from licensed Ohio retailers and the alcoholic beverage were not properly taxed. Though, as noted above, the Act did not include monetary fines, the action against Ace Spirits ended with a consent order that called for financial penalties of $150.00 per violation should the activity complained of continue.

  As noted, the 21st Amendment Enforcement Act has not been often used. It is clear that the Act provides an additional tool for the states to use to enforce its beverage laws. Retailers that engage in interstate sales to consumers should carefully review state laws prior to shipping to remain in compliance. This caveat holds true for e-commerce sellers of alcohol that act under an agent for consumer model. E-commerce sales of alcohol have led to creative routes to market for brand owners as well. As we move forward, state laws may indeed carve out certain exceptions from their legislative floors. For the time being, state and federal courts will remain the arbiter of disputes of this sort. Consumer demands and technology are changing the face of alcohol sales. Until exceptions are carved out at the state level, retailers are well advised to remain in compliance with the beverage laws of receiving states shipping laws.

Uncorking Accessibility

Cyndi

Ensuring Your Website Complies with the ADA

PICTURE OF KEYBOARD SHOWING ADA ICONS IN BLUE

 By: Vanessa Ing, Farella Braun + Martel

In today’s digital age, having an online presence is crucial for businesses, including wineries, breweries, and other beverage companies. Accordingly, it’s essential to ensure that your beverage website meets federal standards for accessibility to avoid lawsuits and fines. In this article, we will help beverage companies understand how to comply with federal law and implement accessible features on their websites.

Why is Web Accessibility Important?

  In 1990, Congress enacted the Americans with Disabilities Act (ADA). It prohibits businesses open to the public (otherwise known as “public accommodations”) from discriminating against people with disabilities in everyday activities. These everyday activities can include purchasing goods and services, or offering employment opportunities. 

  In March 2022, the U.S. Department of Justice issued web accessibility guidance, reiterating that ensuring web accessibility for people with disabilities is a priority for the Department. Relying on the ADA’s prohibition against discrimination and its mandate to provide equal access, Department of Justice emphasized that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web. The Department of Justice’s guidance was particularly timely given that many services moved online during the pandemic. 

  In its guidance, the Department of Justice explained that people with disabilities navigate the web in different ways: for example, those with visual impairments might require a screen reader that reads aloud text to the audience.  Those with auditory impairments might require closed-captioning software, while those with impaired motor skills might require voice recognition software.  A website, therefore, should be compatible with the full range of such software. 

Is Your Beverage Company a “Public Accommodation” Business?

  Public accommodations include businesses that sell goods and services, establishments serving food and drink, and places of recreation or public gathering.  Companies that sell drinks, wineries that offer a tasting room, or breweries that host events are all considered public accommodations.  Thus, those businesses’ websites must comply with the ADA by being accessible to people with disabilities. 

  It is an open question whether beverage companies without a physical location open to the public must still have ADA-compliant websites. Some jurisdictions, like the Ninth Circuit (which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), have tied the necessity of ADA-compliant websites to the existence of a brick-and-mortar location (Robles v. Domino’s Pizza, LLC). However, the Department of Justice, along with several federal circuit courts of appeals, has taken the position that even a public accommodation business without a physical location must have an ADA-compliant website. 

  Given the increased prevalence of online-only services open to the public, it is very likely that litigation over the next few years may resolve this open question.  In the meantime, it is wise for beverage companies to take preventative caution and ensure that their websites are accessible. 

What are some Website Accessibility Barriers?

  To ensure ADA compliance, beverage companies must be aware of common website accessibility barriers.  These include poor color contrast, lack of descriptive text on images and videos, mouse-only navigation, and more.  By addressing these barriers, beverage companies can enhance the user experience for people with disabilities.

  Six examples of website accessibility barriers highlighted in the DOJ’s accessibility guidance include:

Poor Color Contrast: Ensure sufficient color contrast between text and background to aid individuals with visual impairments or color blindness. Use color combinations that are easy to distinguish.

Use of Color Alone to Give Information:  Avoid using color alone to provide information.  Using color alone can be very disorienting for someone who is visually impaired or colorblind.  Someone who is colorblind might not be able to distinguish between shades of gray.  One solution might be to ensure that symbols conveying information are differently shaped.    

Lack of Descriptive Alternative Text for Images and Videos: Provide descriptive text (alt text) for images and videos, allowing screen readers to convey the information to visually impaired users. This makes your content more accessible and inclusive.

No Closed Captions on Videos: Include closed captions for videos to accommodate individuals with hearing impairments. Utilize manual or automatic captioning options and review the captions for accuracy.  Free options are available on the web.

Inaccessible Online Forms: Make online forms user-friendly for people with disabilities. Provide clear instructions before the form, ensure that a screen reader could recognize required fields and fields with special formatting, ensure keyboard-only navigation, use accessible labels for inputs, and display clear error messages.  Note that an image-based CAPTCHA is not a fully accessible way to secure your form; your CAPTCHA should offer users who are visually impaired an audio alternative.

Mouse-Only Navigation: Enable keyboard-only navigation on your website to assist individuals with motor skill impairments or those who cannot use a mouse or see a mouse pointer on the screen.  Make sure all interactive elements can be accessed using the tab, enter, spacebar, or arrow keys.  Use a “Skip to Main Content” link to ensure that users employing only a keyboard can easily navigate the website’s primary content. 

  To implement these features, beverage companies should discuss accessibility concerns upfront with the web developer.  Beverage companies should keep in mind that posting a phone number on a website to call for assistance, as commonly utilized by businesses, does not sufficiently provide equal access to the website and the services or goods provided.

Who can Sue Beverage Companies?

  Non-compliance with ADA standards can lead to potential lawsuits.  Although some courts have held that a nexus must exist between a private plaintiff’s disability and the web accessibility barrier claimed, a private plaintiff may easily surf the web for websites that are inaccessible.  A private plaintiff may then file a lawsuit in federal court without first notifying the business.  Further, liability under the ADA is strict, which means that the intent of the business to comply is immaterial.  Thus, it is prudent for beverage companies to proactively address accessibility issues to avoid potential legal troubles. 

  Private lawsuits under the ADA can result in injunctive relief (a court order to comply with the ADA) and attorney fees.  And in some states, like California, the state law version of the ADA may enable plaintiffs to demand monetary damages ($4,000 per violation of the ADA). 

  Government involvement, while less frequent, is possible in cases involving national retailers.  If the Department of Justice observes a pattern or practice of discrimination, the Department will attempt to negotiate a settlement, and may bring suit on behalf of the United States. At stake are fines of up to $75,000 for the first ADA violation, and up to $150,000 for each subsequent violation.

What are the Rules for Website Accessibility?

  Although the ADA itself does not spell out the rules for website accessibility, several sources provide detailed rules that can aid beverage companies in building accessible websites. 

  First, the ADA authorizes the Department of Justice to enforce the statute.  Accordingly, the Department develops and issues regulations explaining how businesses must comply.  Specifically, § 36.303 of the Electronic Code of Federal Regulations specifies that a public accommodation shall provide auxiliary aids and services when necessary to ensure effective communication with people with disabilities, and that a public accommodation should consult with people with disabilities whenever possible.  The Department also issues administrative guidance, such as its March 2022 guidance described above.  

  Second, Section 508 of the Rehabilitation Act of 1973, which requires federal agencies to make their electronic and information technology accessible to people with disabilities, provides detailed guidance concerning the display screen ratios, status indicators, audio signals, and other accessibility features. 

  Third, the Web Content Accessibility Guidelines 2.1 (WCAG 2.1), which were originally designed by a consortium of four universities, provide highly specific web accessibility guidelines grounded on the idea that information on the web must be perceivable, operable, understandable, and robust.  These guidelines are widely referenced in court cases and settlements with the Department of Justice, as the guidelines address numerous aspects of web accessibility and offer three different levels of conformance (A, AA, AAA). Beverage companies can consult the WCAG 2.1 guidelines (including a customizable quick reference guide, at https://www.w3.org/WAI/WCAG21/quickref/) to ensure their websites meet ADA compliance. 

Looking Ahead

  Web accessibility standards evolve over time, with updates being released periodically. Beverage companies should stay informed about changes and updates to ADA compliance regulations. For example, the WCAG 3.0 is scheduled for release in the latter half of 2023, further refining accessibility guidelines.

  In sum, by understanding and identifying web accessibility barriers, and implementing necessary accessibility features, beverage companies can enhance user experiences and minimize the risk of legal repercussions. Embracing web accessibility is not only legally required but economically prudent in the long run, as it enables beverage companies to cater to a broad and varied audience, and demonstrates a commitment to inclusivity in the digital realm.

  Vanessa Ing is a litigation associate with Farella Braun + Martel and can be reached at ving@fbm.com. Farella is a Northern California law firm representing corporate and private clients in sophisticated business and real estate transactions and complex commercial, civil and criminal litigation. The firm is headquartered in San Francisco with an office in the Napa Valley that is focused on the wine industry.

Certificates of Label Approval for Wines

Cyndi

A few tips and label basics

wine bottle laying on top of legal agreements with a large approved stamped on the wine lable

By Brad Berkman & Louis J. Terminello of Greenspoon Marder LLP

Virtually every wine that it makes to the shelf of a US wine shop has had its label reviewed by the Alcohol and Tax and Trade Bureau (TTB) of the U.S. Government. After a review and compliance is found, a Certificate of Label Approval is issued, commonly known by its acronym, COLA (Wines below 7% a/b/v do not need label approval, but the labels must comply with FDA requirements).

  COLAs do not grant the holder any legal ownership rights but rather indicate that the wine meets all federal labeling regulations with the ultimate goals of ensuring that labels do not contain any misleading, deceptive or inaccurate statements, they properly identify product identity. and contain the ubiquitous “health warning” statement a/k/a the “GOVERNMENT WARNING.” Importantly, COLA’s travel under the permittee, not by brand. This means that each producer or importer must hold the COLA under its TTB permit, regardless of whether the product was previously issued a COLA.

Label Basics

  Labels must have certain required information under the law. This is referred to as “mandatory” information. All other information, absent a mandated exclusion, is generally referred to as voluntary information, which the producer may wish to include on its label.

Mandatory Information-Required Information:

The following must be placed on the label(s):

•     Brand name and class/type designation.

•     Alcohol content.

•     Net contents statement

•     Producer’s name and address.

•     Government health warnings.

•     Country of origin (for imports).

•     Sulfite declaration (for most wines).

•     Appellation of Origin

  An appellation of origin is not always needed on all wine labels, but it must be stated when the following is on the label:

•     A vintage date

•     A varietal designation.

•     A type designation of a varietal.

•     A semi-generic designation.

•     An “estate-bottled” claim.

  It should also be noted that each piece of information be placed on the appropriate label as required by the law. Some information is placed on the back label, while other information may be on the brand label.

wine bottle laying on its side clearly showing it's front label

Notes on Stating Varietal:

Only grape varietals approved by TTB can be used. The list of grape variety names and their synonyms, approved for use, can be found in subpart J in 27 CFR 4 (Code of Federal Regulations).

  Another important point worth noting is the 75% rule. If the varietal is stated on the label, with certain exceptions, 75 percent or more of the wine must be made from the named grape variety. Also, the entire 75 percent of the grape variety must have been grown in the labeled appellation of origin.

  Producers and importers may use multiple grape varietal names on the label. When this is the case, all the grapes used to make the wine must be on the label, and the percentage of the wine derived from each grape is shown on the label as well, with certain tolerances permitted (2%).

Nutritional Information-Is it Required?  For now, nutrient information may be placed on a wine label, but it is not mandatory. The reader should be aware that there are two TTB proposed rules open for public comment. One rule requires the disclosure of per-serving alcohol, calorie, and nutrient content information in an “Alcohol Facts” statement on all alcohol beverage labels. The other requires a labeling disclosure of all major food allergens used in the production of alcoholic beverages, such as milk, eggs, fish, crustaceans’ shellfish, tree nuts, wheat, peanuts, soybeans, and sesame, as well as ingredients that contain protein derived from the aforementioned foods.

  If nutrient information is voluntarily placed on the label (as well as advertising materials), specific requirements apply.  Only calories, fat, carbohydrates, and protein may be included, and according to a TTB webpage, they must be stated in the following manner:

•     Calories: A statement of the caloric content per serving must be expressed to the nearest calorie, except that amounts less than 5 calories may be stated as zero.

•     Fat: A statement of the number of grams of total fat in a serving must be expressed to the nearest 0.5 (1/2) gram increment below 5 grams and to the nearest gram increment above 5 grams. If the serving contains less than 0.5 grams, the content may be expressed as zero.

•     Carbohydrates: A statement of the number of grams of total carbohydrates in a serving must be expressed to the nearest tenth of a gram, except that if a serving contains less than 1 gram, the statement “Contains less than 1 gram” or “less than 1 gram” may be used as an alternative, or if the serving contains less than 0.5 gram, the content may be expressed as zero.

•     Protein: A statement of the number of grams of protein in a serving must be expressed to the nearest tenth of a gram, except that if a serving contains less than 1 gram, the statement “Contains less than 1 gram” or “less than 1 gram” may be used as an alternative, and if the serving contains less than 0.5 gram, the content may be expressed as zero.

  According to TTB ruling 2013-2, Serving Facts statement appearing on a label or an advertisement may be stated per container size if the container is equal to or less than a single serving size. Serving Facts statement may be presented in dual-column format, which provides information both per serving size and per container size. The per serving size requirement is- a single serving is 12 fl. oz. for malt beverages; 5 fl. oz. for wine; and 1.5 fl. oz. for distilled spirits.

The European

Approach-Mandatory Since 2023

  As a point of comparison, wines sold in the European Union, since 2023, must provide consumers with detailed nutritional and ingredient information.

  The stated goal is to offer consumers clear information regarding the wine they are consuming. Interestingly, the regulations allow for QR codes to be placed on wine labels that take the consumer to a website where all the nutritional values can be found. Alcohol content, allergens, and nutritional values must be placed on the label.

What is Subsidized Crop Insurance?

Cyndi

How does it work & are there differences between providers

six people around a table with a laptop and a booth called Vineyard Crop Insurance in a vineyard

By Trevor Troyer, Agricultural Risk Management

The Federal Crop Insurance Corporation (FCIC) was created in 1938. When coverage began, it was limited to major crops. It was essentially an experiment at that time, until the passage of the Federal Crop Insurance Act in 1980. The 1980 Act expanded the number of crops insured and the locations in the United States. In 1996 the USDA Risk Management Agency (RMA) was created.  The USDA RMA’s purpose was to administer the Federal Crop Insurance programs and other risk management related programs.

  Perennials are quite different from traditional row crops or other vegetable crops.  But a lot of the risks are very much the same.  Drought, freeze, wildlife damage, fire/smoke, and the list of perils goes on. From what we see the risks are more with perennials.  It doesn’t matter if it’s an apple orchard, avocado grove or vineyard, your investment is subject to the elements all year round. You don’t have time to wait till the weather gets better to plant your crop. Things may happen after you harvest that might affect the following year’s crop production. 

  Grape Crop Insurance goes back to 1998; the current policy was written in 2010. Crop insurance is a partnership with authorized Insurance companies and the FCIC. Crop insurance is partially subsidized through the USDA. Currently there are 13 Approved Insurance Providers (AIPs) authorized to administer crop insurance policies reporting to the USDA RMA. Prices and premiums are set by the USDA Risk Management Agency per crop, state, and county. There is no price/premium competition from one company to the next because of this. Independent insurance agencies sell for these 13 different insurance providers.

  Grape crop insurance is available in the following states: Arkansas, California, Colorado, Connecticut, Idaho, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Virginia, and Washington. Starting in 2026 grape crop insurance is now available in Dona Ana County in New Mexico. 

Crop insurance is not available for grapes in all counties though. Insurable varieties are also different between states and counties. As mentioned before prices are different between states and counties as well. The USDA price for a ton of Cabernet Franc in Napa County California is different than a ton of Cabernet Franc in Seneca County New York.

map of states that have grape crop insurance and the sigh-up deadlines
Map of states that have grape crop insurance and the sigh-up deadlines

  Grapes are insured under an Actual Production History (APH) plan of insurance. An average of the vineyard’s production per variety is used. Grapes need to be in their 4th growing season to be insurable. A minimum of 4 years is needed to do the average, if the grapes have just become insurable then a Transitional Yield (based on the county and variety) is used in place of any missing years. A maximum of 10 years can be used to determine the average if the vineyard has been in production for that amount of time. Basically, you are insuring an average of your tons per acre per variety.

  With crop insurance you cannot cover 100% of your average production. You can choose coverage levels from 50% to 85%. There is a built-in production deductible. Coverage levels are in 5% increments. Coverage levels are relative to premium, the lower the coverage the lower the premium, the more coverage you buy the higher the premium. It comes back to how much risk you feel safe with. For example, if you have Cabernet Sauvignon and your average is 5 tons per acre. At the 75% coverage level you would be covered for 3.75 tons per acre. You would have a 25% deductible (1.25 tons per acre). To have a payable loss you would have to lose more than 25% of your average production in a year.

  Crop insurance is designed to help a grower have enough money to be able to produce a crop the following year.  I have had winery owners complain to me that it doesn’t cover the cost of how much their wine is worth.  While I can totally understand this, it is the growing costs that are being insured against loss. Crop insurance does not cover the production costs of making wine or juice etc.  What is being covered with grape crop insurance is the price per ton of a specific variety as if you were to sell it.   Only the Causes of Loss that are listed in the policy are being insured against.  You can have an insurable cause reduce the value of your grapes (reduced brix, smoke taint etc.)  and be paid a claim based on the set county price and the difference in the dollar amount received.

  Here are the Causes of Loss for Grapes from the National Fact Sheet from the USDA:

Causes of Loss

  You are protected against the following:

•    Adverse weather conditions, including natural perils such as hail, frost, freeze, wind, drought, and excess precipitation;

•    Earthquake;

•    Failure of the irrigation water supply, if caused by an insured peril during the insurance period;

•    Fire;

•    Insects and plant disease, except for insufficient or improper application of pest or disease control measures;

•    Wildlife; or

•    Volcanic eruption.

  Additionally, we will not insure against:

•     Phylloxera, regardless of cause; or

•     Inability to market the grapes for any reason other than actual physical damage for an insurable cause of loss.

  Crop insurance is partially subsidized through the USDA. Premiums are subsidized from 100% at Catastrophic Coverage (there is an administrative fee though) to 41% depending on coverage level chosen.  A lot of growers “buy-up” coverage from 65% to 80% and their premium subsidy is around 50% to 60%. The subsidy makes crop insurance an affordable risk mitigation tool. 

  Hopefully, you don’t have a lot of situations where you would have a loss.  But as a grower you need to assess your risks.  These must be taken into consideration for the growing region your vineyard is located in. Here are some other questions to ask yourself.  What are your break-even costs?  Do you know your cost of production with projected inflation? Have you evaluated the risk of a severe crop loss? What varieties are planted in your vineyard?  Some types of Vitis vinifera are more susceptible to weather issues than others. Are you able to repay current operating loans without crop insurance in the event of a loss?

  Our job as a crop insurance agent or crop insurance agency is not to convince you that you need crop insurance.  It is to help you make an educated decision, based on your risks, on whether you need crop insurance.  And then, if it is a good fit to mitigate your risks, to determine how much coverage is needed.  No one wants to have a loss, but they do unfortunately happen.

A Short Primer on Exporting

Cyndi

For those who desire to enter the export market

a wine bottle sitting on one of many boxes surrounded by shelves containing wine bottles

By Brad Berkman & Louis J. Terminello of Greenspoon Marder LLP

Given the rates of consumption of alcoholic beverages in the U.S., specifically, the volume declines across all commodities, it may be wise for suppliers to consider markets abroad to sell their wares. Wine exports from the U.S. make up only a small percentage of wine sales, but markets such as Canada, Europe, Japan and the UK are active importers of U.S. produced wine. As a note, the U.S. Department of Agriculture reports that there was $1.27 billion in export value shipped from the U.S., with the top three markets being Canada with $459 million in exports, followed by the European Union with $167 million and the UK with $165 million in export value.

  For those in the wine business who desire to enter the export market, this article examines some key topics regarding the export of alcoholic beverages, and in particular, wine, and essential elements required to remain in compliance with federal and state regulations.

  The reader should bear in mind that the general concern of both the federal and state governments is the protection of excise tax revenue generated from the production and domestic sale of alcohol. When beverage alcohol is exported outside the U.S. or outside the borders of any state, no excise tax is imposed by either level of government. Simply stated, no excise tax liability exists for the export of beverage alcohol. However, strict rules apply and sufficient documentary evidence is required to support exportation; the absence of which will require the exporter to pay the tax that lawfully is not due. The examining auditor needs to be satisfied that a sufficient showing of export has been substantiated; a demand for payment of tax will be imposed.

Export from the Bonded Premises

  For wine producers, federal regulations allow for the exportation of wine from a bonded wine premises for exportation under a variety of circumstances, including to a foreign country, for use as supplies on vessels (such as cruise ships) and aircrafts,  and  transfer and deposit into foreign trade zones and customs bonded warehouses for storage pending exportation. Wine may also be removed from the bonded premises for export to U.S. armed forces for use overseas.

Proof of Exportation

  As noted above, sufficient and acceptable documentation as proof of export is mandated. The Alcohol Tax and Trade Bureau (TTB), in an industry circular, indicates that acceptable proof of exportation includes all documents that substantiate the transaction as a removal for export. Generally speaking, acceptable proof includes:

•    Purchase orders

•    Inland bills of lading

•    Ocean bills of lading

•    Letters of Credit and proof of payment

  The reader should keep in mind that in almost every instance, wine exported beyond state(s) borders is not subject to state excise tax either. The above documentation will likely be sufficient proof of export for state auditors; however, regulations and requirements should be researched by each state.

  Staying with state issues, there may be additional permitting or registration requirements imposed on the party desiring to export wine. In Florida, where this writer resides, a mere export registration is required prior to engaging in export activities. As an additional note, Florida applies Tied-House principles to exporters in that exporters are precluded from holding a vendor’s license (see Florida Statute §561.22(1)). Again, thorough research is required at the state(s) level to ensure compliance prior to commencing export operations.

  Bonded wineries are not the only types of federally licensed manufacturers permitted to export. The same rights are granted to breweries and distilleries. In fact, U.S. importers and wholesalers/distributors are permitted to export as well.

2 ships shown floating in the sea

Wholesaler Export Withdrawal without Payment of Tax

  Wholesalers are permitted to export wine to foreign countries, for use on vessels, such as cruise ships, free trade zones and customs bonded warehouses, transfer to a manufacturing bonded warehouse and to U.S. armed forces overseas.

  Federal law requires that any party purchasing alcoholic beverages for resale domestically or in foreign commerce must hold a Wholesaler’s Basic Permit before beginning operations. Untax paid wine may be removed from the wholesalers’ licensed premises for the purposes stated above; however, an application must be made to TTB on a proscribed form entitled “Withdrawal of Spirits Specially Denatured Spirits or Wines for Exportation”. A TTB officer will review the form and circumstances surrounding the shipment for export and will issue an approval (or denial) prior to the untax paid wine being removed for export. TTB requires that every shipment prepared for export must complete the above process. Additionally, each container or case of wine must be marked with the word “Export,” though certain exceptions exist.

  In addition to the above, a bond must be secured before untax-paid wine may be removed for exportation. The export bond can either be a one-time or continuous bond in an amount sufficient to cover the excise tax which would normally be due.

Wholesalers Removing Tax-Paid Wine

  Tax-paid wines can be exported to all destinations stated above, but a Wholesaler’s Basic Permit issued by TTB is required (and as a reminder-check your states requirements). With tax paid wine, the exporter is permitted to obtain a refund on the tax paid product through a process called drawback. The wholesaler must file the appropriate forms with TTB, including one entitled “Drawback on Wines Exported” to be eligible for the refund. It should be noted that exports to foreign trade zones and vessels or aircraft require that different forms be submitted to TTB to be eligible for a refund. Also, drawback is permitted on exports of beer and distilled spirits.

Other Considerations

  Finally, exporters must consider the requirements of the country to which wines (or other alcoholic beverages) are being shipped to. A certificate of origin certifying the country of origin of the wine will likely be required, as well as other documents. The exporter should be aware of the duties and taxing structure of the receiving country, as well as becoming familiar with the general industry practices of the receiving county to ensure proper product pricing, sufficient exporter margins and general terms of payment. Finally, legal issues should be considered, including the issue of contracts and dispute resolution with the exporters in the country partner. If a long-term business relationship is considered, a sufficient contract memorializing key terms should be put in place between the parties.

  Export markets are a unique and promising opportunity for U.S. wine producers (and beer and spirits producers as well) and wholesalers. Understanding the rules of the road and ensuring both U.S. and foreign compliance issues and business practices are essential to creating a profitable and trouble-free trade environment.

How does the “One Big Beautiful Bill Act” affect your grape crop insurance?

Cyndi
acres of wine grape vineyards under a stormy sky

By Trevor Troyer, Agricultural Risk Management

I have been getting asked, “How does the One Big Beautiful Bill Act affect my crop insurance?”  Does it make any changes to grape crop insurance?  Will it lower my premium or increase my premium?

  Lawmakers passed the One Big Beautiful Bill Act (OBBBA) on July 4, 2025.  There were several changes made to the Federal Crop Insurance Act that affect growers, and the OBBBA made several improvements to crop insurance programs.  Crop Insurance is a valuable tool that is used to mitigate risk and is an essential safety net for many producers.  It also included updates and increased coverage options and, in some cases, higher premium support.  Below I have summarized some of these to help you understand how you may be impacted in the next year.

  One of the most significant changes that was made was expanding the benefits for Beginning Farmer or Rancher (BFR).  In the past if you qualified as a Beginning Farmer or Rancher you would receive an additional premium subsidy of 10 percentage points greater for the coverage level you had chosen.  In addition to the extra premium subsidy all administrative fees would be waived.  You would also receive an increased percentage of any transitional yields from 60% to 80%.  This means when you have a low yield that triggered the Yield Adjustment (YA) endorsement in your production database, you would be able to substitute a higher percentage.   BFR benefits in the past lasted for 5 years.  With the passing of the OBBBA these benefits are now expanded to 10 years.  In addition to the 10% premium subsidy rate a BFR will receive an additional 5% premium subsidy for the first two crop years. Then a 3% premium subsidy rate increase for the third year and an additional 1% for the fourth year.  These BFR changes will increase premium support and allow more growers to qualify for this benefit, and for a longer period.

  The One Big Beautiful Bill Act also amended Area Based Crop Insurance Coverage and Supplemental Coverage Option.  I won’t get into all of these because some are not applicable to grape crop insurance.  One that does interest a lot of vineyard owners is Fire Insurance Protection Smoke Index or the FIP-SI endorsement.  The premium subsidy for this has gone from 65% to 80%.  This may make it an interesting option for those in areas where fires can cause significant smoke taint damage.

  Here is what it says in the USDA Risk Management Agency’s Fire Insurance Protection – Smoke Index Fact Sheet – “The Fired Insurance Protection-Smoke Index (FIP-SI) Endorsement covers a portion of the deductible of the Grape Crop Provisions when the insured county experiences a minimum number of Smoke Events as determined by the Federal Crop Insurance Corporation (FCIC) in accordance with the Smoke Index Data Provisions (SIDP) and identified in the actuarial documents.” 

  This endorsement is based on your underlying policy’s guarantee. In other words, the prices per ton and the average tons used for the underlying policy and your coverage level.  You can never cover 100% of your average production with crop insurance.  You can only cover up to 95%, even though a policy may not have that high coverage. Grape crop insurance only goes to 85%, and this is done with optional endorsements etc.  FIP-SI covers the deductible portion up to 95%.  If you had 50% coverage on your grapes it would cover 45% of your deductible.  If you had 75% coverage the FIP-SI endorsement would cover 20%, etc.

  You sign up for Fire Insurance Protection – Smoke Index by January 31st.  This is the Sales Closing Date for Grape Crop Insurance in California.  The insurance period for FIP-SI begins on June 1st and ends on November 10th. You do not need to report your acres separately as it uses the underlying policies acres.

  Here is the Cause of Loss from the 26-FIP-SI Endorsement: 

Causes of Loss

(a) This Endorsement provides protection for Smoke Events that meet the County Loss Trigger when the minimum number of Smoke Events occur in the county as identified in the actuarial documents. Triggered counties will be determined after the end of the Insurance Period.

(b) Individual vineyard yields are not considered under this Endorsement. It is possible that your individual vineyard may experience reduced yield(s) and you do not receive an indemnity under this Endorsement.

(c) The notice provisions in section 14(b) of the Basic Provisions do not apply to this Endorsement.

(d) Once published, FCIC’s determination in section 8(a) is final and is a matter of general applicability, presumed to be accurate, and will not be changed.

chart showing 2025 subsidy and factors for coverage and 2026

  So, you may not have any Fire or Smoke damage to your vineyard or grapes but still receive a payment.  This is based on your County.  No adjuster is required for this. You are not required to file a Notice of Loss with your crop insurance agent.  Or you may have a loss and get a claim payment for your grape crop insurance and for FIP-SI as well.

  Another major change that comes out from the OBBBA, that will make difference to a grower’s premium, is an increased subsidy rate. 

  An increase in the subsidy portion of the premium will decrease the Producer Premium for that same level. It also opens the door for some to increase coverage as they will be receiving more support. A higher coverage level means that you have more of a chance of having a claim paid.

  With grape crop insurance you are covering an average of your historical production per variety.  Coverage levels go from 50% to 85%.  You have a built-in production deductible with your coverage.  If you choose 70% coverage you have a 30% deductible.  You would have to have a loss of over 30% to have a payable claim. So, if you had a loss of 40% of your average production you would get paid on the 10% past your deductible.   

  With an increased subsidy it might make sense for some to move up another 5% or more in coverage. 

  As an example, I ran a quote for 10 acres of Chardonnay in Sonoma County in California.  The set price per ton is $2401.  I used an average of 4 tons per acre for the quote.  So, at 70% your guarantee would be 2.8 tons per acre.  If you harvest under that you would have a payable claim.  The 2025 premium per acre was $119, for the 10 acres $1190.  For 2026 the premium per acre is $99.70 and then for 10 acres $997.   As you can see this does make a difference.  Whether or not you decide to move up in coverage, saving money while mitigating risk is always important.

  USDA Risk Management Agency Administrator Pat Swanson said. “We’ve moved quickly to put American farmers first, ensuring they have the protection they need when unavoidable natural disasters occur.  We encourage all producers to work with their crop insurance agent to understand how these historic changes will benefit their operations.”

What Is a Brand, really?

Cyndi

And why yours might need a little therapy

By: Susan DeMatei, Founder of WineGlass Marketing

The word “brand” is notoriously difficult to define in marketing. If we were talking about a ranch brand—the kind seared onto livestock to signify ownership—that’s easy to understand. But in marketing, a brand is not a physical thing. It’s a symbolic construct. It’s not the label on the bottle or the winery’s logo or even the product itself. Rather, it’s the entire perception a consumer holds in their mind about your company, your wine, your people, and everything you collectively represent.

  A brand is a conceptual identity that differentiates you from your competitors. It can be shaped by your name, your origin story, the design of your label, the personalities involved in your winery, your tasting room experience, your packaging, your email tone, your partnerships, or even how you respond to a customer complaint. All these elements come together to form the intangible yet powerful idea of your brand. It is, quite literally, everything that signals who you are and why someone should care.

The Brand Illusion & its Real-World Value

  So why do marketers spend so much time discussing something that isn’t technically real? Because the effects are very real. Trust in a brand drives buying behavior. According to a 2021 report by Salsify, 90 percent of consumers said they are willing to pay more for a product from a brand they trust. And in a study by Deloitte Digital and Twilio, 68 percent of surveyed consumers reported they had spent more with a trusted brand—on average, 25 percent more.

Graphs entitled most trusted brands in the united states in 2024

  This isn’t just theoretical. Every year, major consulting firms and publications like Forbes and Newsweek publish lists of the most trusted brands. These aren’t obscure B2B companies or trendy startups. They’re names like Coca-Cola, Kleenex, and Whirlpool—brands that have become synonymous with quality, consistency, and confidence. In categories like health, beauty, and especially food and beverage, trust is essential.

  Food and beverage, in fact, ranks as the most trusted industry in the U.S. According to Morning Consult’s 2022 study, 72 percent of adults expressed some level of trust in the sector. That number climbs to 84 percent among Baby Boomers and 82 percent among high-income consumers. For comparison, trust among Millennials is 67 percent, and among Gen Z, it’s just 62 percent. These generational and socioeconomic differences remind us that brand trust is not universal—it must be nurtured and earned within each target group.

graph titled most valuable brands worldwide in 2025

  The idea that a collection of products, messaging, and people can form something consumers trust enough to put into their bodies is no small feat. In wine, where the product is sensory and the market is crowded, that trust can decide between a sale and a pass.

  Make no mistake—this intangible identity has tangible value. Consider when Joe Wagner sold the Meiomi brand to Constellation Brands in 2015. Nothing tangible transpired: no winery, vineyards, or staff. What Constellation bought for $315 million was a name, a label, and a loyal following. They bought the brand. The value placed on these intangible assets of a brand is referred to as Brand Equity. That’s the power of branding.

People Buy Brands, Not Products

  Your brand includes your product, but it is not your product. This crucial distinction often gets blurred, especially in industries like wine, where so much attention is given to what’s in the bottle. The reality is that consumers rarely buy based on technical attributes alone. They buy based on what they feel the product represents. They buy based on brand.

  Consider Halls. Technically, it’s a British brand of mentholated cough drops, now owned by Mondelēz International. That’s the company. But that’s not why people grab a pack of Halls at the drugstore when they’re sick. And if we were to describe the product the way we often do in wine—focusing on precise formulation—we’d say something like: “This is a 5.8 milligram lozenge with lemon flavoring, containing 16.1 mg of menthol and 8.1 mg of eucalyptus globulus leaf essential oil.”

  Informative? Maybe.

Persuasive? Not even close.

  Halls doesn’t sell ingredients. It sells empowerment. The brand message is clear: we know you’re indispensable to your family, workplace, and life. A cold shouldn’t stop you, and Halls won’t let it. It promises to clear your symptoms so you can keep going. That’s the brand. And it’s working—Nielsen reports Halls’ sales grew more than 32% in 2023, a surge not driven by a change in formula, but by a clear and resonant brand promise.

  This is the essence of brand power. People don’t buy what a product is. They buy what it means. They buy it because of how it makes them feel, how it fits their life, and what it says about them. Brands create shorthand for decision-making, simplify the overwhelming, and reinforce identity. That’s true in cough drops, and it’s absolutely true in wine.

So… How Do You Protect (and Strengthen) Your Brand Right Now?

  Here are a few no-nonsense steps you can take this week to make sure your brand’s identity doesn’t slip into witness protection:

1.    Google Yourself (and Don’t Flinch):

      What comes up first? Your website? Yelp? A two-year-old event listing? Your digital first impression is your storefront — make sure it says what you want it to.

2.   Audit Your Touchpoints:

      Look at your website, social feeds, emails, tasting notes, signage, even your Wi-Fi password. Do they all sound like the same personality? If not, your brand’s having an identity crisis.

3.   Define What You Aren’t:

      Everyone wants to be “premium,” “authentic,” and “approachable.” Snooze. Get real about what makes you different — and what doesn’t fit your vibe. That’s where clarity (and memorability) live.

4.  Protect the Visuals:

      Your logo, colors, and photography are your visual handshake. Don’t let them be distorted, stretched, pixelated, or used on a mauve background because someone “thought it looked nice.” Create a style guide and guard it like a secret recipe.

5.   Train Your Team to Be Brand Ambassadors:

      Every person pouring, posting, or answering an email is your brand. Make sure they know how to represent it — and reward them when they do it well.

6.   Listen. Constantly:

      Brands aren’t built in boardrooms; they’re built in the wild. Track reviews, social comments, and customer emails. They’ll tell you what your brand actually means out there — not just what you hope it does.

The Bottom Line

  Your brand is the most valuable asset you own — even if it never shows up on a balance sheet. It’s perception, emotion, and memory all wrapped into one name. It’s what turns a tasting into loyalty, a label into a lifestyle, and a sale into advocacy.

So don’t just make great wine. Make a great impression — again, and again, and again.

Susan DeMatei founded WineGlass Marketing, the largest full-service, award-winning marketing firm focused on the wine industry. She is a certified Sommelier and Specialist in Wine, with degrees in Viticulture and Communications, an instructor at Napa Valley Community College, and is currently collaborating on two textbooks. Now in its 13th year, her agency offers domestic and international wineries assistance with all areas of strategy and execution. WineGlass Marketing is located in Napa, California, and can be reached at 707-927-3334 or wineglassmarketing.com