Marketing During a Crisis: Tips to Pivot Your Marketing Messages

By: Susan DeMatei

Recession Marketing Pro Tip: Understanding consumer psychology and the underlying emotions is critical when advertising during a recession.

  In the wine industry, we don’t typically analyze consumers’ psyches or emotions. We tend to think of our customers demographically – mid 40’s – 60’s, lives in New York, Texas, and Florida, HHI over $150k, and the like. But in times of stress, demographic segmentation may be less relevant than psychographic segmentations that take into consideration consumers’ behavioral reactions and the underlying emotions they are feeling at the time.

  The coronavirus sanctions have created an undercurrent of fear, worry, and stress. People are looking for stress relief and a temporary distraction. By understanding and appealing to their emotional needs you have a better chance of connecting with and engaging them. This is not a novel approach. Research shows that ad campaigns that focus on emotional engagement tend to have a higher ROI than ad campaigns focusing on rational messages (such as low prices or special offers) even when times are not tough.

  But how do you know what your consumers need to hear right now? To guide us, I found an insightful study in the Harvard Business Review that looked at marketing successes and failures of dozens of companies during recessions from the 1970s – 2010. HBR identified patterns in consumers’ behavior and resulting company strategies that either helped them succeed or ultimately fail during a recession. Additionally, they strongly encourage companies to understand the evolving consumption patterns and fine-tune their strategies accordingly.

  For example, did you know that baking yeast is flying off the shelves? An NPR article on March 27th listed the products consumers are buying beyond the necessary cleaning products and everyday groceries. Baking yeast is high on the list – people are baking bread because it is comforting to make, smell, and eat. Two other items on the list are boxed hair dye and dress tops, which speak to the psychology of “keeping up appearances.” With the increase in video conferencing, these make complete sense.

  So, how should we in the wine industry alter our strategies to fit the current climate? First, we need to understand the psychology of our customers. The HBR article suggests there are four key psychological segments and your strategic opportunities will strongly depend on which of the four segments your core customers belong to, and how they categorize your products.

1.  Slam-On-The-Brakes: These are the people who feel most vulnerable and/or are hardest hit, financially. This group cuts all their spending to the necessities. Although lower-income consumers typically fall into this segment, it also includes those anxious higher-income consumers who fear health or income changes.

2.  Pained-But-Patient: This group is the largest of the four segments and represents a broad income swath. While they are more resilient, pained-but-patient consumers are less confident about recovery, and their ability to maintain their current standard of living. So, they economize, but less aggressively. For these consumers, time is their enemy. As the current situation drags on many will migrate down to the slamming-on-the-brakes segment.

3.  Comfortably Well-Off: These are the consumers who feel secure about their ability to ride out the current and future changes in the economy. Their consumption patterns don’t change that much with one exception; they tend to be a little more selective (and less conspicuous) about the brands/companies purchased.

4.  Live-For-Today Segment: This segment carries on as usual. Typically, urban and younger, they are more likely to rent than own, and they spend on experiences rather than stuff (except for consumer electronics.) They’re unlikely to change their everyday consumption behavior unless they become unemployed.

  In addition to the customer segmentation, the HBR article gives us some guidance with emotional product prioritization:

1.  Essentials: Necessary for survival or perceived as central to well-being.

2.  Treats: Indulgences whose immediate purchase is considered justifiable.

3.  Postponables: Wanted or needed items whose purchase can be put off.

4.  Expendables: Perceived as unnecessary or unjustifiable.

  Wine is a luxury item no matter which way you slice it. But your price point and your target will fall into one of these four segments, and your product into one of these four prioritizations. Are you a high-priced allocation wine that mostly sells to the comfortably well-off that are comfortable spending money online? Or are you a strong on-premise brand for the pained-but-patients that would benefit from positioning yourself as an affordable treat in these uncertain times?

  Wine over $20 is best targeted at the Comfortably Well-Off (our traditional wine club target audience), and the Live-For-Today-Segment (our emerging target, and typically our tasting room traffic) and should be positioned squarely in the treat/affordable luxury category.

  So, how do we sort through all of this to create marketing and advertising campaigns and programs that recognize your customers’ psychological and emotional state? Here are my recommendations:

 #1 Support your brand by staying true to yourself:

       Look at your current plans through the lens of “would my winery do this if it wasn’t a crisis?” Tweak your messaging to dovetail with the psychological and emotional pressures your target market is feeling. When sales start to decline, the worst thing companies do is alter their brand’s fundamental proposition. If you have a high-priced and valuable wine, you may be tempted to decrease your price. This may confuse and alienate loyal customers. Drifting away from your established base may attract some new customers in the near term, but you will find yourself in a weaker brand position when the crisis is over. Your brand can acknowledge the new world but fundamentally should remain unwavering.

#2 Move budgets toward measurable channels that fit with customers’ digital lifestyles:

       The Harvard Business Review article reported during the recession of 2008, marketers spent +14% more on online ads than they did over the same time frame in the previous year. Even before most of us were asked to “shelter in place,” our purchasing behavior had shifted significantly to digital platforms, driven by technology advances, access, and convenience. For marketers, the shift allows us to surgically target, show results, and pivot quickly. Even without a recession environment, marketing departments are under pressure to do more with less and demonstrate high returns on investment. Digital advertising is targeted and relatively cheap, its performance is easily measured, and it is where our customers live.

#3 All businesses will increasingly compete on price:

       You may think that discounting is in opposition of #1 – but we didn’t say don’t offer discounts, we said don’t discount outside of what your brand would typically offer. Also, watch the frequency as you will likely feel pressured to increase the frequency of temporary price promotions. Three tips here:

a)   The article notes research shows discounts that require little effort from consumers and give cash back at the time of sale are more effective than delayed value, or “buy more” promotions. Look for the quick benefit, keep it easy, and keep the barriers low. Know your average order value. If your customers are used to buying 4 bottles an order, a case offer might be pushing it.

b)   Make sure you sign up for lots of mailing lists and carefully monitor consumers’ perceptions of “normal” price levels. As an industry, we need to watch over ourselves and not create “a new normal” that we can’t sustain. Excessive promotions lead consumers to revise their expectations about prices and this threatens profitability in the recovery period. People will resist the steep increases as prices return to “normal,” and extreme price deals only lead to costly price wars.

c)   Focus on giving extra value to consumers. As much as it may pain us, this is about them, not you. While it is tempting to ask for help from your most loyal customers, this is not of value to them in their current state of mind. In addition to offering temporary price promotions or list-price changes, improve perceived affordability by reducing the thresholds for volume-based, club member, or allocation discounts. Expand loyalty programs to reward not just big-time spenders, but also people who purchase small amounts frequently.

#4: Keep your messaging calm and trustworthy:

     Last, but not least, in stressful and uncertain times consumers in all segments see familiar, trusted brands and their products as safe and comforting. Reassuring messages that reinforce your brand’s humanity and creates an emotional connection demonstrate empathy, as evidenced in the popular hashtag #alonetogether. But, remember empathetic messages must be backed up by actions demonstrating the brand is on their customers’ side.

  The Harvard Business Review article concludes after 40 years of research, those brands that come out the other side of economic crisis will be stronger. First, the discipline around marketing strategy and research we develop during this time, and the ability to respond nimbly to changes in demand will continue to serve us when the economy recovers. And second, we should prepare now for a possible long-term shift in consumers’ values and attitudes, and a certain shift in where and how they shop.

   Susan DeMatei is president of WineGlass Marketing, a full-service direct marketing firm operating within the wine industry in Napa, California. Referenced and reproduced by approval from the April 2009 Harvard Business review article “How to Market in a Downturn” by John A. Quelch and Katherine E. Jocz. www.wineglassmarketing.com

Wine in the Time of COVID-19

By: Briana Tomkinson

Tasting rooms, restaurants and bars across Canada were abruptly shut down in March in an unprecedented move to slow the spread of COVID-19 and avoid overwhelming health care services. Boutique wineries from coast-to-coast immediately pivoted to focus on online sales to try and soften the blow.

  For established brands, this meant re-jiggering the marketing plan and reallocating resources to push local delivery or contactless pickup orders instead of targeting wine country tourists. For two fledgling wineries on opposite ends of the country, wine in the time of COVID-19 meant embracing a crash-course in online marketing.

  At Priest Creek Winery (https://priestcreekwinery.com/) in Kelowna, British Columbia, founder Jane Sawin was all set to finally open the tasting room to the public on March 20. Instead, she got an ugly surprise when the province suddenly announced that bars, pubs and liquor-only tasting rooms had to suspend operations until health authorities determine the pandemic is under control.

  “The day we would have opened the tasting room was the day the Canadian health authorities shut everything down. The tasting room is ready, beautiful, clean and ready to go,” Sawin said. “It’s a little sad.”

Complicating matters, the winery’s website launch had been delayed when the webmaster fell ill with COVID-19. Sawin decided to improvise: she created a special social media promo, of-fering a 15% discount and free local delivery, and began taking orders via Facebook and In-stagram.

  Orders have been steady, Sawin said, and social media and word-of-mouth marketing has been working.

  By early April, the winery was processing between 10-to-15 orders per day, she said. Some local customers were ordering as few as two bottles at a time, but many others, especially those farther afield, bought Priest Creek wine by the case. Priest Creek produces six varieties of red and white wine, with list prices ranging between $19 and $46 CDN per bottle. The win-ery’s website is finally up and running too, now that the webmaster has recovered.

  For now, Sawin is just hoping to keep the momentum going while the winery tries to get its name out there. Unlike competitors in the wine trail area who have built up a base of loyal cus-tomers through tourism and event marketing, Priest Creek has no reputation to trade on.

  “The hardest part is that no one got to taste our wine before this happened,” Sawin said.

  On the opposite side of the country, the new owners of Ontario’s Vankleek Hill Vineyard found themselves in a similar predicament.

  Like Sawin at Priest Creek, Vankleek Hill owners, Teresa Bressan and Scott Lambert, had to scramble to find a makeshift solution to sell wine without an online store when health authori-ties closed down all the province’s tasting rooms in March.

  The vineyard’s tasting room opened in October, but Bressan and Lambert had prioritized cleaning up the property’s bedraggled vines before building an online store. They had been counting on events and tourist traffic to drive sales this year, but with group gatherings of all sizes banned and even driving between regions discouraged or restricted, they’ve had to re-think the business plan.

  “We kind of jumped in with two feet,” Bressan said. “Our website isn’t ready for it. We don’t have an online store.”

  Like Sawin, one of Bressan’s biggest challenges is just finding ways to get new customers to try her wines. In Bressan’s case, it’s not just that the wine brand is new to consumers—it’s that many locals didn’t much like the wine produced by the former owners of the vineyard.

  “We have a big stigma to remove,” Bressan said. “Their wines are not on our shelves. We couldn’t even come up with a good recipe to make sangria with it.”

  Bressan, a former realtor, found an upside to the additional legwork required to process orders without a proper online system in place: it created an opportunity to build a more personal connection with customers. For example, when she learned one customer was ordering a case of 12 wines to give away for Easter gifts, she included tissue paper and gift bags at no extra cost to spare the person having to make another trip to the store.

  “If you show your customers that you appreciate them, they will come back for sure. We really put a lot of emphasis on personalized attention,” Bressan said. 

  While Vankleek Hill Winery launched its wine delivery by offering a 15% discount on purchases, Bressan said when the promo ended, the orders kept on coming in.

  “We’re still so new, and we’re learning a lot. Vankleek Hill is just amazing. It truly is,” she said. “This unfortunate event has really brought the community together, truly. I’m finding a lot of goodness in a lot of people these days.”

Alcohol Sales Increase, Even with Delivery Hiccups

  Canadians across the country have taken shelter-in-place orders very seriously. An online sur-vey conducted between March 29 and April 3 by Statistics Canada found that 90% of re-spondents reported that they were following physical distancing guidelines, such as avoiding leaving the house, using social distancing when out in public, and avoiding crowds and large gatherings. Sixty-three percent had stocked up on essentials at the pharmacy and grocery store, so they didn’t need to go out as often.

  The same survey found that 20% of those aged 15 to 49 admitted to increasing their liquor consumption during lockdown, compared to just 7% of those over 50. Yet liquor store sales skyrocketed in March, suggesting that some consumers have begun stockpiling more than just toilet paper.

  According to the British Columbia Liquor Distribution Branch, sales of boxed wine jumped 144% in March. Sales of bigger 1.75-liter bottles of vodka, rum and whisky were up an impressive 153%, and 24-packs of beer were up 120%.

  Yet home delivery has also had its hiccups. On March 26, the National Post reported that the Liquor Control Branch of Ontario had to halt home delivery of wine, beer and spirits outside of Toronto because Canada Post had halted delivery of packages requiring proof of age at the doorstep to limit the COVID-19 risk to mail carriers.

  A prior partnership with the home food delivery app, Foodora, has allowed delivery to continue in Toronto. Ontarians living outside the Foodora delivery limits can still order online, but must now go pick up their delivery in person at a Canada post office.

  In Quebec, the Société des alcools du Québec announced a partnership with Purolator to en-sure direct-to-door delivery would continue. Delivery fees are $12, which will be donated to provincial food banks.

  Some boutique wineries, including both Priest Creek and Vankleek Hill Vineyard, are bypassing the post office or courier service, however, to personally offer free local delivery for larger or-ders. According to the B.C. Wine Institute, 86% of British Columbia wineries were offering free shipping on some orders in March.

  Even in provinces like Quebec and Ontario, which both announced a total ban on the operation of “non-essential” businesses for a month or more on March 23, the production and distribu-tion of wine, beer and spirits are allowed to continue. Yet it is far from business-as-usual.

  In addition to sales challenges, many wineries have also been impacted by supply chain dis-ruptions and unexpected labor issues.

  Vancouver’s Georgia Straight newspaper reported that some British Columbia winemakers are behind schedule on bottling because they have not yet received shipments of bottles, labels or corks from international suppliers. Many wineries have had to lay off tasting room staff, yet are also faced with a shortage of field labor because foreign seasonal agricultural laborers are not yet allowed to cross the border. 

  Priest Creek was among the wineries affected by production delays. Sawin said she would have been able to open the tasting room as much as two weeks earlier had bottling not been delayed due to illness-related slowdowns at the factory that produced her labels.

  Across the country, provincial officials have urged Canadians to shop local and support small businesses as much as possible, including local wineries.

  In Quebec, the provincial government launched a website called “Le Panier Blue” (https://www.lepanierbleu.ca/) (a ‘blue basket,’ referencing the color of the provincial flag), to help Quebecers identify local businesses where they can order products for pickup or home delivery. At press time, over 228 Quebec wineries, breweries, distilleries, cideries and dépan-neurs (convenience stores specializing in wine and beer sales) had registered on the site.

  “Let us remember that every dollar invested counts and helps support our local products and our expertise, which further stimulates our economy,” said Quebec Minister of Economy and Innovation, Pierre Fitzgibbon, in a news release about the program.

  In British Columbia, officials continued the tradition of officially decreeing April “wine month” with a social distancing twist: urging consumers to buy 100% British Columbia wine to enjoy at home.

  In a press release issued by the B.C. Wine Institute, Agriculture Minister Lana Popham called on consumers to choose locally made products to keep small wineries from folding.

  “Many B.C. winemakers depend on sales within our province to keep their businesses running, and our support for them and all B.C. farmers and businesses during this pandemic will help the resiliency and future of food and beverage production in British Columbia,” Popham said.

  Back at Vankleek Hill Vineyard, Bressan said she has noticed many of her friends, neighbors and customers are making a point of buying local. Moving forward, she thinks this trend will continue.

  The support from local customers has been a lifeline for the winery, and has inspired Bressan’s family to make a significant effort to buy from local producers as well—especially when it comes to wine.

  “We love wine, but now we only buy local wines from Ontario and Quebec. It’s also good prac-tice for us to learn and see what other people are doing, and develop our palate for wine from cold-climate grapes,” she said. 

So You Want to Make an Icon Wine?

By: Dr. Richard Smart, vinedoctor@smartvit.com.au, www.smartvit.com.au

Many companies are now focused on the production of an icon wine in the belief that it will help market other products in their portfolio. I suppose there is a high degree of self-satisfaction as well for all of the people involved.

  Over the last few years, I’ve had several clients in several countries who were on this path, and I was always interested in how they went about it. Sometimes the approaches were (in my opinion) seemingly naive, like…”We just thinned really hard, and then hand-picked,” or, equally as trite…“I went into the vineyard every morning for three weeks and tasted the fruit and looked at seed colour to choose when to harvest. This made all the difference!”

  One has to ask, is this all the difference between icon and premium wines, a few simple vineyard manipulations?

  When pressed harder, I found it difficult to locate anyone in the winemaking team—including the viticulturist—who could give sound reasons (in my opinion) as to selection and management of vineyards to make icon wines. To develop icon wines is not just a matter of marketing, but of producing a truly distinctive and better wine.

Wineries or Vineyards, the Source of Icon Wines?

  I want to recap and look at this notion from a very general perspective. We can conceivably create icon wines by using any of three processes.

  Firstly, one may use techniques in the cellar, which will have an unusual but significant wine quality impact. Examples that come to mind from several decades ago were the use of new wood barrels on red wines, and, some years later, for the white wines. By now, most cellars around the world have adequate access to new wood, so that treatment is no longer an icon differential. Nor do I think icon wines can be made by any special yeast strain, or perhaps fermentation process. I should quickly add that the ACE process described in the last issue (achieved by the Della Toffola DTMA machine) certainly produces distinctive wines; however, as its application becomes widespread, its possible use for creating iconic wines becomes less likely. So, from my perhaps limited knowledge, icon wines will likely not be “created in the winery.”

  Secondly, some wineries make many small parcels of wine, and the icon may be a selection of their best lots. A valid process, I think, but one which neither guarantees outcome, nor reliability of result from year-to-year. So such wines would not meet normal icon criteria.

  Thirdly, is the option of choosing an “icon wine vineyard,” having one or more blocks, or parts thereof, producing distinctive wines. These parcels may be managed differentially to create icon wine.

  I have been critical of other people’s approaches to the selection and management of “icon” parcels. Here is their chance to criticize mine.

A Smart Approach to Selection and Management of Icon Vineyards

  When I think of growing fruit suitable for an icon wine, I think of an analogy involving a suspended chain holding a weight. Each link in the chain is a different thickness and represents a different vineyard attribute or management process. The weight at the bottom is related to the wine quality outcome and will be heaviest for an icon wine.

  The point of this analogy is that if any one link fails, then the whole chain is rendered useless. Those processes or attributes which are the most important can be represented by weaker links in the chain. In other words, it is more important to get these right than some other management options or attributes, which can be represented by stronger links. The important point here is that if any link fails, then the whole chain fails, and the wine quality goal will not be met.

  These are the factors which I think are important in growing icon wine, arranged more or less in order of priority. The weaker links, which deserve the most attention, are towards the top.

1.   The right climate-variety-clone combination:      

      I see little sense in trying to make an icon wine from a variety that has no possibility of being especially distinctive. If the variety you have chosen does not already have a reputation for premium wine quality in your region or elsewhere, then the possibility of creating a true icon wine is limited. Please note that I am not endorsing only the limited number of “international varieties.” Icon wines can be made from many varieties, and in a perverse way, it will be likely easier to have wine press attention if you use a not-so-popular variety.

      I mention clone because, for some varieties like Pinot Noir, the clone chosen can have a significant outcome on wine quality.

2.   Vineyard uniformity and vigour: There is little prospect of making an icon wine from a very large vineyard or one of low uniformity. A uniform vineyard is typically variable in vigour, often due to soil variation, but sometimes due to pest or disease. Unhealthy vines rarely produce quality wines. Variation in vigour can be linked to physiological status and canopy microclimate, and appropriate selection may be used to select vines, which are candidates to provide fruit for icon wines.

3.   Vine balance:  Proper vine balance is essential for producing premium fruit suitable for icon wines. By vine balance, I mean the ratio of fruit to functional leaf area. Vine balance depends on the pruning level decision, which ideally should be related to vine vigour, and there may also be components of subsequent shoot and cluster thinning. I obviously think vine balance is more important than yield per se, but this, of course, is not the common European perspective.

4.   Canopy microclimate: While microclimate requirements may vary from variety-to-variety and season-to-season, in general, there is a need for sufficient leaf and fruit exposure, and the avoidance of shade. There are trellis and foliage management techniques available to achieve such an outcome. My book, “Sunlight into Wine,” details many such procedures and their management.

5.   Vine physiological status: There are many aspects of physiological status, and most are regulated by soil moisture, nutrient supply and canopy management decisions. As an example, we have recently found an influence of late-season foliage health on Pinot Noir wine quality.

6.   Shoot tip growth: Regulation of shoot tip growth is especially important for red wine quality but also for many white varieties. A good rule of thumb is that active shoot growth should stop some two weeks before veraison, and be associated with early and rapid onset of veraison and lignification.

7.   Disease, pest and environmental stress: For most commercial vineyards, this is not an issue; however, heat stress is becoming an increasingly important consideration for many regions worldwide. Failure to adequately control pests or disease and to avoid significant stress can be a cause of diminished fruit quality. Some regions face changing varieties to ones more heat tolerant.

8.   Timely harvest decision: Again this is not an issue that it is found wanting in most commercial vineyards. For many varieties, I am skeptical about the claims by enologists that they can determine the optimal time for harvest by tasting grapes, or by determining seed colour in limited berry samples.

9.   Excessive yield: I find in many commercial vineyards that yield levels are generally not inappropriate nor excessive. Yet, the first command that comes from the wine company is generally one of yield reduction! In my opinion, in the pursuit of icon wine, the factors listed above are generally more important than vineyard yield, when the vines are in balance.

10.Harvest method: For many situations, it seems to me that harvest method is quite unimportant.  What seems more important is the temperature of the fruit and the time taken before processing. I have clients in California who hand harvest at night in a very economical fashion, and this process could be adopted in Australia.

A suggestion to get started, a beginners guide to identifying candidate vines

  Decide how much icon wine you want, then calculate how many vines you might need to provide fruit. Walk the vineyards at the beginning of veraison, and mark vines (paint on trunk?) which show early colouring, and early lignification on the basal (bottom) part of the shoot. Typically these vines should not have active shoot tip growth. Hopefully, you may have enough vines to make your icon wine, though the average yield might be a little less. A second inspection about two weeks later should confirm your selection.

                          Conclusion        

  Generally, these ideas are not new, but one does not often see them ranked as I have. I would emphasize that each of these entries can be readily quantified, and it would be easy to develop a protocol of measurement systems as a form of quality assurance of events. Anyone interested in making icon wine the smart way?

  Dr. Richard Smart is an experienced Australian vineyard consultant residing in Melbourne, Victoria, Australia. He specializes in internet consulting, using commercial software to interact with clients worldwide in their office and vineyards. Contact him at vinedoctor@smartvit.com.au for a quotation and appointment.

Wine Scholar Guild Reports on the Launch of the Spanish Wine Scholar™ Certification Program

The Wine Scholar Guild (WSG) officially launched its Spanish Wine Scholar™ (SWS) study & certification program on October 14th 2019.

  Designed to become the reference in Spanish wine education, the program was nearly two years in development at the hands of the WSG Education team with SWS Education Director, Rick Fisher, at the helm.

  “The SWS program will give students appreciation for how tradition and modernity perfectly coexist and why Spain is one of the most exciting and enviable countries on the world wine stage,” states Rick Fisher.

  The Spanish Wine Scholar™ study program mirrors the unparalleled level of detail and academic rigor offered by the acclaimed French Wine Scholar™ & Italian Wine Scholar™ programs.

“Now covering all three major wine producing and exporting countries in the world, the Wine Scholar Guild has become the world’s leading provider of specialized certification programs” states Julien Camus, WSG Founder and President.

  The 315-page, full-color SWS study manual represents today’s most comprehensive and up-to-date resource and definitive reference book on the wines of Spain! It was written by Rick Fisher with the collaboration of numerous Spanish Consejos Reguladores (governing bodies) and copy-edited by Jonas Tofterup, MW, of Iberian Wine Academy.

  In recognition of the exceptional depth and accuracy of the program, Wines from Spain (ICEX – Spain’s Trade & Investment Government Agency) endorsed the program. Alfonso Janeiro Diez, Head of Wines from Spain in Madrid states, “Wines from Spain is pleased to have had the opportunity to witness and consult on the development of this much needed and important Spanish Wine Scholar program since its inception.  The program offers a great opportunity for those who want to widen their knowledge of the wines from Spain.”

  Designed for committed students of wine, be they wine professionals or serious wine hobbyists, the SWS program is offered in both distance-learning and classroom-learning format.

  A pioneer in online wine education with its first online study program launched in 2008, WSG has created a wealth of e-learning resources to empower SWS students: online modules, quizzes, learning games, flashcards, pronunciation exercises, etc.

Wine educators from WSG’s Approved Program Provider network – currently 60+ wine schools in 26 countries – were trained as part of the SWS pre-launch beginning in January 2019. Many of these educators are now preparing to teach the SWS program this fall utilizing the teaching materials developed and provided by WSG.

  Among the 120 wine educators in training, 40 have already passed the SWS exam and earned the Spanish Wine Scholar title. 20 sessions are currently scheduled at partner schools in the US, Canada, UK and Sweden.

  About the Wine Scholar Guild: The Wine Scholar Guild (www.winescholarguild.org) provides specialized study & certification programs on the wines of France, Italy and Spain for the professional development of wine industry members and committed students of wine.

Post-Harvest Vineyard Maintenance: Tips to Finish the Year Off Right

By: Alyssa L. Ochs

Although the busy time of harvesting grapes is winding down or has ended for many vineyards, there’s not much time to sit back and relax before more critical work must be done. Many post-harvest vineyard tasks should be on every vineyard’s to-do lists to prepare for next year’s crop and sustain the longevity of the vineyard’s operations.

The Basics of Post-Harvest Vineyard Management

  After the growing season ends and the grapes have been picked, grapevines go dormant and signal that it’s time to start preparing for next year. Some of the vital maintenance tasks to do after harvesting are removing bird netting, analyzing the soil with samples, repairing or replacing trellising and equipment, and planting a cover crop to reduce soil nutrient loss and control erosion. It is also the time of year to be proactive about pest control, consider irrigation strategy, stock up on new vines and put some thought into overall vineyard management strategy.

  As vineyards wrap up harvest operations and prepare for winter, some specialists may be helpful for advice, products and services.

•    Vineyard management companies

•    Pest control companies

•    Irrigation consultants

•    Nurseries

•    Trellising companies

•    Soil companies

Check and Repair Trellising

  Trellising is a big part of post-harvest maintenance, because, in most climates, grapevines need supports to secure the wood and summer shoots within the training system, and ensure proper ventilation and exposure.

  “Furthermore, the trellis helps to improve the implementation of viticulture work and facilitate mechanized procedures, like machine harvesting,” said Oliver Asberger, Vice President of PA Trellising Systems in Charlottesville, Virginia. “If a trellis is not designed right or maintenance is not kept up, it will lead to deficiencies in vineyard performance and higher costs in labor and parts.”

  Asberger told The Grapevine Magazine that two primary signs of a good trellis are tight wires and stable posts. “Each growing season, the trellis experiences pressure on its systems, and that leads to loosening of parts or even breakage,” he said. “To optimize the performance and keep costs down, the trellis is best fixed when the pressure is off and the vine is dormant.”

  PA Trellising Systems is a distribution company, rather than a vineyard management company, but it can offer advice on how to modify and repair existing materials if a vineyard notices a problem with its trellising system.

  “When it comes to new establishments, we guide the buyer to what options are available and optimal for post models, forms of galvanization, size and length, inside or outside hooks, set depth and use of accessories, like cross-arms or wire extenders,” Asberger said. “Also, we are able to customize our posts to offer the best solutions for a unique growing situation.”

  Another company that provides trellising products is Gripple, which offers the Gripple Plus for simple push-fit splicing, locking and tensioning system that is up to five times faster to install than traditional methods for broken trellis wires. Gripple joiners and tensioners have patented ceramic rollers that deliver a better grip and non-corrosive hold on the high tensile wires that are used in vineyards today. They can be used in conjunction with the Gripple Torq Tool or Gripple Contractor Tool to return tension to slacked or broken trellis wires quickly.

  “The Gripple Plus range is perfect for ongoing maintenance and allows for re-tensioning year after year,” said Erik Shortenhaus, Gripple’s Business Development Manager. “Gripple also provides pre-made cable bracing kits designed for the quick and easy repair of end post assemblies. Within our end post cable bracing kits, we offer a range of clips and end-fittings that are designed to quickly and securely attach to any end post material on the market, such as wood, drill pipe and channel steel. Additionally, Gripple offers a range of below-ground, percussion-style anchors that can be instantly load-locked and serve as a dead man anchor point or additional reinforcement for existing anchors. Gripple products make vineyard installation, maintenance and repairs simple and secure.”

  Shortenhaus pointed out that the growing season, crop load, weather, farming practices and harvest activities all contribute to possible wear on a vineyard’s trellis system. He said that the rigors of harvest, especially machine harvest, take a strenuous toll on a vineyard’s trellis structure, making this a prime time to check trellising.

  “Taking account of any damage that has occurred during harvest or over the year, and addressing it prior to next year’s crop, is essential to providing a solid, consistent and hassle-free foundation for your vines,” said Shortenhaus.

Check and Improve Irrigation

  Vineyard managers should remember to check their irrigation systems after harvest since machine harvesting can be rough on the vines and system. Look for physical damage, such as fallen hoses or emitters.

  Brett Curtis and James Bengtson of California’s Bennett Water Systems recommend using the post-harvest time as an “alarm clock” to handle yearly maintenance and “do an eyes-on evaluation with a full system flush and a line treatment to clean the emitters.”

  At the filter station, they recommend inspecting the sand for the sand media filter, working condition of the backwash valves and screen of the screen filter. Other recommendations are to check the pressure gauges to assess the accuracy of the pressure differential and to look for gasket leaks and other visible signs of failure.

  “Post-harvest irrigation is what lets you double-check that all of your fixes were successful before you put the system to sleep for the year,” said Curtis and Bengtson.

  Bennett Water Systems has knowledgeable key-account managers, salesmen and project managers who can perform evaluations, get to the root of the problem, and perform any fix that is required.

  “We have crews with years of experience both in installing drip systems for vineyards and performing repairs and regular maintenance,” said Curtis and Bengtson. “Whether it’s an issue with a pump, filter station or anything downstream of the filter, like pipe, tubing or emitter issues, we have a way to fix it or a solution to prevent it from causing issues in the future.”

Soil Enhancement and Maintenance

  One of the essential tasks to do post-harvest is evaluating the soil for determining nutrient and organic matter needs.

  “The vines utilize nutrients during the growing season, but not all nutrients are absorbed at the same rate,” said Coult Dennis of Superior Soil Supplements in Hanford, California. “The pH level of the soil makes a big difference in the availability of nutrients to the vines. Some nutrients are more readily available at lower pH; others are more available at higher pH. It’s important to look at the pH levels of both the soil and the irrigation water sources in order the make the best possible decisions regarding soil amendments.”

  Founded in 1983, Superior Soil Supplements dedicates themselves to building healthy soil and being California’s largest distributor of bulk agricultural soil amendments and landscape materials. It has facilities in Ivanhoe, El Nido, McFarland, Hanford and Coalinga and believes that balanced soil builds a strong foundation for crops, saving the farmer money on fertilizers and other crop inputs in the future.

  “Making sure your vines are set up for optimal growth in the spring is vital to having flourishing canes and ultimately, a strong and profitable yield,” Dennis said.

Order New Vine Stock if Needed

  After harvest is the ideal time to determine whether the vineyard will need new vine stock for the next growing season.

  “If you are looking to order vines for the spring of 2020, the best time to order vines is from August to December 2019 to ensure that varieties you want are still available,” said Ray Winter of Winterhaven Vineyard and Nursery in Janesville, Minnesota.

  Established in 2001, a year after starting a vineyard of over 14 acres and 6,000 vines, Winterhaven nursery specializes in cold-hardy wine grapes and sells many bare-root grapevines for red, white and table grape varieties. Winter said that the most important things for a vineyard to consider when ordering vines from a nursery should be whether the varietal is hardy to the growing location and if there is a market for them if the vineyard does not plan to use them in their wine.

Final Words of Advice

  In addition to these post-harvest maintenance tasks, vineyards will also want to spend time identifying and removing diseased vines, perhaps with the guidance of a local pest control company that specializes in vineyard pests. It’s also time to check vineyard equipment for routine maintenance or repair needs, as well as to identify which pieces of equipment to replace.

  Take time to reflect on the season and discuss with staff what went well and how to make improvements for the year ahead.

In closing, here are a few final words of advice from our industry experts to guide vineyards across the country through the post-harvest time of year and ensure a successful 2020 season.

For trellis maintenance, Oliver Asberger of PA Trellising Systems advises vineyards to establish a trellis that will last for the lifetime of the vineyard—approximately 25 years— and is mostly maintenance-free.

  “Too often, at the time of establishment, growers choose materials at lower costs or cut corners within the stability performance but later end up with extremely high maintenance and replacement costs,” Asberger said. “Also, in this era of less labor and more mechanization, a grower should consider if the system is set up to use technology in the future, even if the vineyard doesn’t currently own it. A later modification will be costly or not applicable at all.”

  Asberger also said that a trellis is best maintained during the dormant time because, with no canopy present, it’s easy to see loose or missing parts and replace them more cost-effectively.

“Doing this work when the canopy is present will hinder the effectiveness and most definitely will lead to damaging the shoots,” he said.

  Shortenhaus of Gripple also advises vineyards to take a visual inventory of their trellis systems and make any needed repairs or adjustments to give the vineyard a strong foundation for the next growing season.

  “Using Gripple for your trellising repair and maintenance needs couldn’t be simpler or more reliable, and it will effectively reduce your work time,” he said.

  Bennett Water Systems’ most significant piece of advice for irrigation is to remember that the system installed impacts yield directly.

  “The efficiencies of the system all play into it, such as pump efficiency, pressure losses, if supplements are going where you expect and need them and if your water is being evenly distributed throughout the whole field,” said Curtis and Bengtson. “For Bennett Water Systems, it is our goal to design and install a system with the highest distribution uniformity as possible that provides our customers with the tools that they need to produce maximum yields most sustainably.”

  Dennis of Superior Soil Supplements said that the thing his company sees most in California is a lack of organic matter in the soil. He said that organic matter should make up about 5% of soil composition and while this is difficult to achieve, adding any amount of organic matter will help. Organic matter helps retain moisture and nutrients in the soil, promotes beneficial soil flora growth to chelate nutrients, and breaks them down into a structure that can be used by the plant.

  “Compost is the least expensive and easiest way to build up organic matter,” Dennis said. “Compost can be derived from municipal green waste sources, as well as from manure and even processed sewage. Green waste is the most popular choice for vineyard applications. Like any other crop input, organic matter is depleted in the soil through the growing season and needs to be replenished.”

  Dennis recommends compost application as part of a grower’s yearly soil fertility program. “To maximize spreading efficiency, we often blend fertilizers, sulfur, limestone or dolomite with the compost, so the year’s soil needs are addressed with one pass of the spreader,” he said.

  Concerning ordering vines, Winter of Winterhaven Vineyard and Nursery said vines coming from a cold climate nursery tend to grow better than those purchased from warm climate nurseries, even though the genetics are the same.

  “We have had many customers tell us this,” Winter said. “After the fruit comes off our grapevines, we always try to do a fertilizer spray on the leaves to feed the vine and get them ready for the winter.”

Sample Your Juices & Wines

By: Thomas J. Payette, Winemaking Consultant

Representative Sampling

While in the lab, and tasting wine at blending session etc, the winemaking team spends considerable time on getting procedures and processes correct to run each particular test on a sample of wine or juice.  Yet, equally as important, if not more, are we obtaining data and flavors that represents that particular batch or tank of wine?  Has the sample, in any way, been compromised so that it does not reflect the tank or lot of wine intended?  One would not want to take winemaking action on a wine only later to find out the action was not necessary.

  How often does a winemaker go into the cellar, select a sample of wine and then run a particular test, tasting analysis or blending trial on the sample drawn?  Are these test(s) run with confidence?  Do these numbers reflect the true tank’s contents?  Do we need to sample each individual 60 gallon barrel and spend countless hours in the laboratory?  Not necessarily unless the winemaker suspects a certain flaw to be identified with a particular vessel.  If that is the case, it is best to “quarantine” that particular lot of wine until the proper blending time making sure not to infect other batches.

  The author wants to emphasize for the purpose of this article the lab test results are correct and the lab technicians are not at fault.  The numbers reflect the sample given to the lab but the sample is not representative of the complete batch of wine in that tank.  Take the opportunity to resample a wine that shows suspicious numbers in the lab.  Remain open-minded and always quiz yourself to the possibilities of improper sampling.

  Below are some pointers to help with the scope of sampling properly

Tank Sampling

  Sample Valve: Perhaps one of the easiest situations to monitor a large quantity of wine, yet, this process must be taken seriously with particular attention to the contents.

  If taking a sample from a stainless tank understand where the sample is coming from in reference to the contents of the tank.  If a cloudy sample is taken from a sample valve near the bottom of the tank, understand it may not be cloudy throughout the whole tank and most likely very clear at the top of the tank.  Was the sample valve cleaned after it’s previous use?  Was the valve flushed of its spoiled contents to bleed off any high VA or bacterially loaded wine, prior to sampling, that may have formed in the unsealed body of that valve?  This flushing action of the sample valve, due to the positive pressure in the vessel, has little risk for cross-contamination and it is recommended in order to obtain a representative sample of the tank’s contents.

  From the top lid or manhole: Perhaps one of the best ways to sample in well managed cellars if all the tanks are kept topped up and a catwalk exist to each man way.  This gives the winemaker a chance to visually inspect the wine tank contents while taking the sample.  Caution should be expressed not to sample the surface of the wine but to get the collection flask well under the surface of the wine to collect a representative sample.  The surface of the wine may have a lower SO2 reading and false numbers other than these that do not reflect the majority of the wine.  Please keep in mind this sampling choice could be a large source of cross-contamination if not done properly because certain items may contact each wine as samples are collected.

  Ball Valves: Known to be the largest offender of panic and false a test results from the lab.  Ball valves often have high spoilage counts, if not cleaned properly, lending toward off values most particularly with Volatile Acidity and Sulfur Dioxide just to name two.  Other tests may give false reports in terms of the tank’s actual contents.  One should flush ball valves diligently when taking samples and one should be able to clean these valves well while not in use.

  Butterfly Valves: These offer an excellent source to sample a tank’s contents if a sample valve is not present.  Care should be taken to flush these valves, too.  This flushing is more to remove solids and less to remove any potentially spoiled wine.  The butterfly valve often will collect solids in them and deliver an unrepresentative sample unless flushed prior to sampling.

Barrel Sampling

  This is often the easiest yet most winemakers try and dodge this exercise making large decisions after tasting one barrel in a particular batch.  One needs to isolate the vessels of a certain lot of juice or wine.  With proper record keeping and a logical marking of each container this process is not too bad.  One may sample an equal portion from each vessel of a particular lot (recommended for blending session exercises) or fifty percent of the vessels for that lot.  Many times the winemaker can hedge this knowing a particular test or cellar action will be run in the future.  One could use the fifty percent rule, or even less, if only addressing minor actions.  Knowing the wine will be racked from barrel in 6 months may lend toward running further tests, double checking current data and making larger corrections at that time if needed.

  Stratification: If taking a sample from the very top of a tank – does the sample represent the complete wine tanks contents?  If taking a sample from near the bottom – does this represent the wine tanks content?  Should mixing be used to make the tank contents uniform?

  Mixing: It may not always be prudent to mix a tank of wine for sampling purposes.  Much of the lees and solids may have settled to the bottom of the tank and mixing the tank would only re-suspend those solids.  Certain times the winemaker may want to mix the tank prior to sampling may include: Prior to bottling, just after a racking or blending, just after and during additions and anytime a true representative sample is known to be needed for a particular winemaking decision.

  Blending Sessions: Getting prepared for a blending session is a time to make sure your samples are very representative and broken down into areas of distinction – perhaps even inside various “same” lots.  For example:  Mountain Fruit Cabernet New French Oak, Mountain fruit Cabernet Old French Oak, Mountain Fruit Cabernet New American Oak, and so on. 

  All of these samples in the example may be from the same raw material but the cooperage influence incorporated into them has made them very different.  These differences make blending sessions a joyful challenge and yet offers the best chance to have the flexibility and control needed during a blending session.  This sampling will give the blending session the greatest flexibility and control to the outcome of the final blend.  After wine samples are taken from each vessel – make sure to mix the sample so the actual sample taken will be representative of the complete number of vessels sampled and that incomplete mixing will not adversely affect the blending session’s outcome in the cellar.

  Fining trials: This is an important time to have a representative sample.  Mixing a reasonably clean wine, free of sediment, is desired to make sure this important refinement tool is employed properly prior to fining the tank’s complete contents.

  Sampling collection beakers, vessels and containers:  Make sure to take samples in clean containers free from any debris or residues.  An example may be the adverse reaction to a sample taken in a beaker that was recently used during a Sulfur Dioxide addition or used to dissolve meta-bisulfite.  If residual sulfur dioxide remains in that container, it may adversely affect the lab test results and needed additions may be overlooked.  The lab test result will show ample quantities, when in fact, the actual tank contents sample may have indicated otherwise.

Temperature Measurement and Stratification:

Outside of the sampling topic, keep in mind when looking at a thermostat on a tank, where the thermocouple is inside that tank.  If the reading is from a lower area in the tank, it may not be given a representative reading of that tank’s true temperature.  This is especially important when cold stabilizing wines.  Mix the tank prior to seeding (if seeding is the practice used for cold stabilizing) the wine.  With large capacity tanks, one may notice during mixing the temperature may rise.  Another temperature stratification check, prior to mixing, is taking a temperature reading from the top of the tank’s contents.  Notice any difference?  One will often see a difference in warm cellars with tall and large capacity tanks.

Summary / Miscellaneous

  Representative sampling applies well beyond the wine cellar.  This principal has huge applications in the vineyard when sampling the raw fruit to determine when to pick a certain variety or block.  This concept is often reflected in grape berries sampling – a potential article in itself not to be dealt with in this article.

  With above knowledge, keep in mind how the wines were sampled and how important that sampling technique may be when a particular decision is being made.  When in doubt – resample and re-run the test in question.  The winemaker is encouraged to make sure to think about the sample he or she has and to think what is actually inside the tank.  Keep a keen sense of when tasting or when chemical data from a sample does not “measure up” to what is expected.  Be sure to investigate all angles before proceeding with drastic processes toward a tank of wine.  It may just be the sample!

  The data collected, whether blending, tasting or chemical analysis in the lab, can only be as effective as the sampling.  The samples content should be directly related to the tank and it should represent as closely as possible the contents.  Always keep in the winemakers’ mind how a sample represents the tank contents while tasting, testing and blending.

Know your wine or juice sample and what it represents!

Enforcing Your Trademarks: How Far Should You Go?

Legal Protection word cloud concept

By: Brian D. Kaider, Esq.

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

Take Stock of the Situation

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

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

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

First Contact

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

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

Cease and Desist Letter

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

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

Trademark Opposition

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

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

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

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

Trademark Cancellation

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

Trademark Infringement Litigation

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

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

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

Conclusion

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

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

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

Dealing With Contracts

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

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

Contract ATips

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

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

Contracts You Create

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

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

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

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

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

Contracts You Sign

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Top 3 Tips for Contracts

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

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

Wine, Widgets & Website Accessibility

By: ADA Site Compliance

Like most businesses today, wineries are grappling with making their websites accessible to users with disabilities. Plaintiffs and their attorneys continue to target the wine industry and have now filed dozens of lawsuits alleging that growers, distillers, distributors, and merchants are non-compliant under the Americans with Disabilities Act (ADA). If the current litigation wave follows that of other verticals recently hit – retail apparel, hospitality, restaurants, travel, among others – the trend will likely persist until every player in the space has either revamped its existing website, built an entirely new one, or closed its doors altogether.

  So how have wineries and vineyards fared so far in facing this new risk? While the final chapter in this story has yet to be written, defendants in such suits across similar retail-based industries have found that their outcomes largely depend on the strategy they choose to adopt. There are three basic approaches. One option is to do nothing at all and hope for the best.

  A second option is to take some incremental step or steps toward improving the website. Often, this involves fixing the easy-to-find compliance failures – issues like color contrast violations and missing alterative (“alt”) text on images. The advantages here are convenience and cost; many software tools can assist with this, and for not much money. The primary disadvantage is that the results are mixed, since no technology can catch every failure. In fact, most automated tools only detect about 20-30% of the non-compliant issues. As a result, while software offers a step toward ADA compliance, it will continue to leave website owners exposed and vulnerable. And given that “copycat” suits are now the norm, your odds of escaping further litigation are low.

  The third option is for wineries to make their websites ADA compliant. The only way to do this is through human expert auditing that involves actual people going through the site manually to check for all 78 “success criteria” under the current web content accessibility guidelines (WCAG 2.1). After that, wineries can use the audit reports to remediate their sites and achieve meaningful compliance. While this option costs more, it remains the only reliable way to stop successive suits. It is also the right thing to do.

Widgets: Savior or Snake Oil?

  Many businesses – not just wineries – turn to third-party accessibility “widgets” as an apparent cure-all. These software plugins or overlays go directly on a website and claim to provide disabled visitors with an expanded set of accessibility tools to help them better navigate the site. To the uninitiated, widgets seem to be the long- sought solution: an inexpensive and easy-to-use button that makes fonts bigger, contrasts sharper, and other enhancements. Their simple integration with any website accounts for their widespread adoption.

  Unfortunately, as lots of their former advocates have found, widgets fail to make any website. In fact, there is reason to believe they make sites less compliant than before and more susceptible to litigation. The reason: the features they offer are already available to users via their browsers, their operating systems, or their assistive devices such as electronic screen readers (JAWS and NVDA are the two most popular). Most users who would benefit from a widget’s functionality already have these options available and are using them when needed. So instead of providing new ways to access information, widgets only succeed in further confusing assistive devices, which now have yet another potential barrier on the website to try to “read” and “understand.”

  Some experts have been vocal in their opposition to widgets as a quick-fix tool. Jeanne Spellman, a 19-year veteran of web accessibility, represents the World Wide Web Consortium (W3C), the group that creates the WCAG guidelines. When asked about the rise of widgets, Ms. Spellman referred to them as “snake oil” and noted their likelihood of exacerbating a website’s accessibility hurdles. “Installing plugins that provide text-to- speech or screen magnification,” she writes, “does not help people who are blind or low-vision, because these inferior plugins interfere with real assistive technology the blind or low-vision person already owns and uses.”

  Fair enough. But what about the benefit of widgets as a risk-mitigation tool? Is there not some advantage that website owners derive from prominently displaying this software on their site? To this, Ms. Spellman offers a definitive no: “Plugins do not help you if you are sued. Additionally, installing a custom overlay over your code … requires changing the custom overlay every time you make a change to your site. In the end, you still have an inaccessible site.” In the end, the only use Ms. Spellman sees for widgets is as a temporary patch while business owners fix their sites.

Take Action Now

  In the short term, what should wineries do in order to minimize their risk of costly litigation? Here are some steps that make for a good start:

•   Hire a true expert in website accessibility. There are many new players in the digital accessibility world, many of whom come from other businesses like web design or marketing. They may be experts in their core business, but they’re not web accessibility specialists. Don’t let them learn on your dime.

•   Post an accessibility statement. This can be simple verbiage on your site that lets visitors know you are addressing the issues. It also lists your contact info so that users can reach you if they need help navigating the site. Nearly every lawsuit filed in his space cites the lack of such a statement on the site.

•   Perform human audits. Again, technology does have some benefit for those looking to gauge their general accessibility level. But it will not make your website compliant. If true accessibility is the goal, you must have human beings auditing your website for all instances of all WCAG errors.

•   Commit to ongoing auditing and maintenance. Post-remediation, you’ll need to periodically review your site to make sure it stays compliant. Your content may change, as do laws and regulations, and so a set-it-and-forget-it strategy can land you back in court. Accessibility is a journey, not a destination. 


  Lastly, remember that website accessibility is about more than merely avoiding lawsuits; it’s about doing what is lawful and making your website accessible to all, which ultimately benefits everyone, including your winery. 


  For more information about becoming ADA compliant, please contact Gemma Petrón at ADA Site Compliance at…

(561) 258-9875; gemma@adasitecompliance.com

or find us at… https://adasitecompliance.com

Vineyard Fungal Trunk Diseases: Prevention and Control

By: Judit Monis, Ph.D., Plant Health Consultant

Grapevine trunk diseases occur worldwide and may be caused by bacterial or fungal pathogens, or both. This article will focus on trunk disease caused by fungal pathogens.  It is important to note that the same fungal pathogens that affect grapevine are capable of infecting other fruit crops and landscape trees. It is my intention to provide information on the different species involved in the different diseases and learn how to prevent new infections in the vineyard.

  If you read other articles I wrote or heard me speak, you already know that the only way to avoid diseases in the vineyard is to prevent the introduction of pathogens in the first place.  Once established in the vineyard, there is no cure for graft-transmissible diseases and new infections are difficult to control.     This means that care must be used when selecting planting material prior to developing a new vineyard block. 

  Below I describe the most common grapevine trunk diseases caused by fungi.  As with viruses and bacteria, fungal pathogens can be found in mixed infections with other fungi, as well as with bacteria and viruses.

Petri Disease, Young Vine Decline, Esca

  The disease is caused by Phaeoacremonium and Phaeomoniella species in young vines.  In older vines (defined as older than 10 years), the disease is known as Esca.  Esca disease can be chronic when vines are infected for a long period of time showing gradual decline symptoms or acute when the vines decline and die within a few days (apoplectic stage). It is not uncommon during the apoplectic stage to see dried up canes carrying grape bunches with raisins.

Bot Canker, Eutypa and Phomopsis Die Back, Other Cankers

  Various pathogens can cause canker disease in the vineyard. Bot-canker is caused by different species in the Botryosphaeriaceae family.   Eutypa dieback is caused by different species in the Diatrypaceae family.  The best characterized and known species is Eutypa lata species.  In my lab we characterized Seimatosporium as a canker species, but within the same group others have reported Pestalotipsis and Truncatella to cause cankers in grapevines.  Other canker pathogens include Diaporthe (also known as Phomopsis).  The canker symptoms observed when sectioning the trunk or cordon of a vine can look similar even when caused by unrelated fungal species, however, the life cycles and mode of infection may be different.

Black Foot Disease

  Species of Dactylonectria and Ilyonectria (previously known as Cylindrocarpon spp.) are the causal agents of this complex disease.   These fungi are soil born and most active on compact soils with poor drainage.  Symptoms above ground are indistinguishable from Petri disease and the often the decline symptoms can be confused with Pierce’s disease. 

Other Diseases

  Species of Armillaria mellea (Oak root fungus), Verticillium, Phytophthora, and Fusarium are soil born fungal species capable of causing decline and rots in the vineyard.

  Disease Prevention and Control (Management)

  As mentioned earlier, the best disease control measure is to prevent infection.  Unfortunately, our certification programs do not test or exclude the infection of fungal pathogens in propagation material. The implementation of appropriate sanitation measures at the nursery is needed to produce high quality planting grapevine material.  You probably heard me say that one infected vine can produce at least 100 -200 vines each year, potentially producing a significant number of infected grafted plants. Because fungal pathogens cannot be eliminated in the vineyard once introduced, it is important to inspect nursery material prior to planting.  Since the effect of grapevine fungal pathogens generally will increase with the age of the vineyard growers must adopt management and control measurements as soon as the vines are planted in order to prevent the propagation and the dispersal of pathogens.

  When planting a new vineyard, it is important to inspect the quality of the planting material (graft union integrity, lack of streaking or pitting) and plant in well prepared and drained soil, at the correct season.  It is important to apply best practices in the vineyard (i.e., enough water, nutrients, etc.) as many of the fungal pathogens are endophytic (can live in the vine without causing damage) but can become pathogenic during stress situations.

  Management at the vineyard should include trained personnel for pruning.  In California where the rainy season coincides with the pruning season it is recommended to prune as late as possible.  If the vineyards are large, double pruning is recommended.  In all cases, after pruning, the fresh wound produced should be protected using fungicides or SafeCoat VitiSeal.  The recommendation of pruning as late in the season as possible is related to wound healing (the vine is more active in the spring and will heal faster) as well as most fungal trunk disease pathogens release spores during the rainy season and in the spring time the proportion of spores would have reduced to a minimum.  However, wound protection is still required because fresh wounds are more susceptible to infection and can remain susceptible for long periods of time.   Things to avoid during pruning are: producing large wounds, cutting near the trunk, pruning after long periods of rain, and leaving vine residues in the vineyard floor.

  A more drastic disease management practice includes vine re-training (training a new shoot from the base of the trunk to replace the old decayed vine trunk or cordons).  The technique can help gain some years of production but will not cure the vines from the disease. 

  Economic studies performed by Kendra Baumgartner and colleagues (USDA in UC Davis, California) has shown that preventative methods (late pruning, double pruning, and pruning wound protectants) are sustainable only if applied before symptoms appear in the vineyard.  Adopting these methods in vines that are 10 years old or older will not recover the cost of investment.

  Other methods that have been reported for the management of fungal diseases include mustard greens cover crops and biological control agents such as Trichoderma and Mycorrhizal fungi.

  New and more sensitive pathogen detection methods that apply next generation sequencing are now available for the detection at the species level of microorganisms in plants and soil.  It is my hope that in the near future, these methods will help reduce the infection levels of planting material and consequently will translate into healthier vineyards.

  Judit Monis, Ph.D. is a California-based plant health consultant, provides specialized services to help growers, vineyard managers, and nursery personnel avoid the propagation and transmission of disease caused by bacteria, fungi, and viruses in their vineyard blocks.   Judit is fluent in Spanish and is available to consult in other important wine grape growing regions of the word. 

  Please visit juditmonis.com for information or contact juditmonis@yahoo.com to request a consulting session at your vineyard.