August 07, 2017
August in California means one thing to alcohol beverage attorneys – ABC priority license announcements! Every year the California ABC announces which counties are eligible for new on-sale and off-sale general licenses based on population growth within each county. The 2017 figures have been released, and the numbers this year are sure to excite a lot of retail applicants. In addition, recent legislation granted the ABC the ability to authorize new on-sale general licenses in certain counties regardless of population growth. Along with the authorized priority licenses, the ABC will be accepting applications for licenses in the following counties: Napa (5), Inyo (5), and Alpine (4). Applicants for these licenses will need to meet certain restaurant seating capacity requirements.
General retail licenses authorize the sale of beer, wine, and distilled spirits. They are restricted by county population and must typically be purchased on the open market from an existing licensee, often for a very high premium. Licenses are usually confined to the county in which originally issued, so prices vary drastically across the state. Every year, during the ‘priority application period,’ the ABC accepts new license applications. In addition, they announce a number of inter-county transfer allowances – where an applicant in a priority county can purchase a general license on the open market from a licensee in any other county and transfer it into the priority county.
If you’re in the market for an Off-Sale General Package Store License (Type 21), an On-Sale General Eating Place License (Type 47), or a Special On-Sale General Club License (Type 57) within a county where licenses are available, you should apply. Note that an applicant may be approved for an On-Sale General Public Premises License (Type 48), but only if the applicant is able to establish during the formal application process that there is a substantial public demand that cannot otherwise be satisfied.
The maximum number of priority applications the ABC typically authorizes for each category (new on-sale, new off-sale, inter-county on-sale, inter-county off-sale) is twenty-five. The ABC has authorized the maximum number of priority applications in several counties, including Alameda, Contra Costa, Los Angeles, Orange, Riverside, Sacramento, San Bernardino, San Diego, and Santa Clara. For a complete list of license available by county, click here.
ABC District offices will accept priority applications by mail or in person from September 11-22, 2017. If by mail, it must be postmarked on or before September 22nd. If the ABC receives more applications than licenses available, a public drawing will be held at the District office, usually in early-mid October. Successful applicants will have 90 days to complete a formal application.
Priority application fees are $13,800 for new general licenses and $6,000 for inter-county transfers. A certified check, cashier’s check, or money order must be submitted along with the priority application. Unsuccessful applicants will be refunded the application fee, minus $100 service charge.
Residency requirements specify that every applicant must have been a resident of California for at least 90 days prior to the scheduled drawing. For corporations, limited partnerships, and limited liability companies, the 90-day residency clock starts ticking upon registration with the California Secretary of State.
An applicant doesn’t need to have a specific premises secured to apply for a priority license, but if successful, will need to submit a formal application for a specific location (within that same county) within 90 days. The applicant will be required to present a lease with at least a two-year term for the premises. Priority licenses are subject to certain conditions, including a prohibition against transferring the license for two years after issuance.
If you’re interested in applying for a new or inter-county on- or off-sale general priority license, contact an attorney at Strike & Techel.
February 17, 2016
Effective January 1, 2016, the California ABC Act contains a new section that loosens the restrictions suppliers face when mentioning a retailer in a social media post. Newly added Business and Professions Code § 23355.3 is aimed at clarifying how suppliers and retailers can co-sponsor nonprofit events. It was drafted, in part, as a response to the backlash that occurred after the ABC filed accusations against several wineries for advertising sponsorship of the “Save Mart Grape Escape” charity fundraising event in 2014. In that instance, several wineries posted or tweeted their support and sponsorship of the event on social media. The ABC reasoned that the suppliers were impermissibly advertising for Save Mart, a retailer, even though the event was held under a nonprofit permit issued to a bona fide nonprofit organization. The ABC alleged that by posting or tweeting about the event, the suppliers were giving a thing of value to the retailer, a practice that has long been considered a violation of California’s tied house restrictions.
California law has long permitted supplier licensees to sponsor nonprofit events if the nonprofit gets an event license, and the new law does not fundamentally change that. However, the new section clarifies that a supplier may advertise sponsorship or participation in such events even if a retailer is also a named sponsor of the event. Payments or other consideration to the retailer are still considered a thing of value, and are not allowed, but social media postings no longer fall under that broad category. There are restrictions on what the supplier is permitted to post about the retailer; posts cannot contain the retail price of alcoholic beverages and cannot promote or advertise for the retail licensee beyond mentioning sponsorship or participation in the event. The supplier can share a retailer’s advertisement for the event on social media, but the supplier is not permitted to pay or reimburse the retailer for any advertisement and cannot demand exclusivity of its products at the event. In short, the new section will allow exactly the type of supplier social media support that occurred in the Save Mart Grape Escape situation.
October 13, 2015
On October 8, 2015, California Governor Brown signed the Craft Distilleries Act of 2015 into law, which creates a new license for craft distilleries. AB 1295 is a step forward for craft spirits producers, who will no longer be subject to the same strict restrictions that apply to traditional Distilled Spirits Manufacturers (Type 4 licensees). The new Craft Distiller’s license allows the production of up to 100,000 gallons of distilled spirits each year and also includes several other key privileges not available to larger distilleries that hold Type 4 licenses: Craft Distillers will be able to sell distilled spirits to consumers, operate restaurants from their premises, and hold interests in on-sale retail licenses.
AB 1295 adds several sections to the California Alcoholic Beverage Control Act, including Business and Professions Code Sections 23500 through 23508. Those sections include the following privileges for Craft Distillers:
The new bill also amends Business and Professions Code Section 23363.1 to allow Craft Distillers to conduct distilled spirits tastings either: a) off their licensed premises at a nonprofit event held under a nonprofit permit; or, b) at their licensed premises under specific conditions. The other notable change to the statute is that tastings can be provided in the form of a cocktail or mixed drink, and the sample size limitation has been changed to one and one-half ounces maximum per consumer per day. Those changes apply to both Craft Distillers and Distilled Spirits Manufacturers.
The new laws take effect January 1, 2016.
Contact one of the attorneys at Strike & Techel if you have any questions about distillery licenses in California or elsewhere.
Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2015 • All Rights Reserved •
November 10, 2014
Appellations of origin are the place names that describe where the grapes that make up a given wine were grown. There are rules controlling the statement of appellation on the label, all of which are aimed at making sure that the label of the product accurately reflects what is inside the bottle. Most of the appellation labeling rules are in the Code of Federal Regulations at 27 CFR Part 4, but state law must also be considered, and can sometimes be more limiting than the federal rules.
Appellations are required on wines if the label also includes a varietal designation or a vintage year (27 CFR 4.34(b)). The chart below lists some of the basics on appellations for wines made from California grapes.
|Appellation on Label||What is in the Bottle?|
|California||75% of the fruit must be from California and the wine must be finished within California or an adjoining state. (27 CFR 4.25)|
|A County in California||75% of the fruit has to be from the county and the wine has to be finished in California. (27 CFR 4.25)|
|Two or Three Counties in California||All of the fruit has to come from the listed counties, the percentage of fruit from each county has to be listed on the label, and the wine has to be finished in California. No more than three counties can be listed. (27 CFR 4.25)|
|An American Viticultural Area (AVA) in California||AVAs are specific geographic areas approved by the TTB. A list of all of the AVAs in the country is available here. 85% of the fruit has to come from the AVA and the wine has to be finished in California. (27 CFR 4.25)|
Special California Requirements
|Appellation on Label||Special California Rule|
|“California” or any geographical subdivision of California (including a county or two or three counties)||100% of fruit must come from California. (Cal. Code Regs., tit. 17, § 17015). This rule is more specific than the federal rules, and means that any wine with a California appellation of any kind must be made from 100% California fruit.|
|“Sonoma County”||Labels MUST say this if also labeled with an AVA entirely within Sonoma County. (Cal. Bus. & Prof. Code 25246)|
|“Napa Valley”||Labels MUST say this if also labeled with an AVA entirely within Napa County. (Cal. Bus. & Prof. Code 25240)|
|“Lodi”||Labels MUST say this if also labeled with an AVA entirely within the Lodi AVA (Cal. Bus. & Prof. Code 25245)|
|“Paso Robles”||Labels MUST say this if also labeled with an AVA entirely within the Paso Robles AVA (Cal. Bus. & Prof. Code 25244)|
|“Napa”, “Sonoma” and any AVA in Napa County||The rules for using “Napa,” “Sonoma,” and any AVAs in Napa are especially strict. Those terms cannot appear on the labels unless the wine in the bottle qualifies for use of the term under the federal labeling regulations.(Cal. Bus. & Prof. Code 25241, 25242 and 27 CFR 4.25)|
|Counties of Sonoma, Napa, Mendocino, Lake, Santa Clara, Santa Cruz, Alameda, San Benito, Solano, San Luis Obispo, Contra Costa, Monterey or Marin||Any written representation (e.g., labels, advertising, company letterhead, etc.) that a wine is produced entirely from grapes grown in these counties must be true. (Cal. Bus. & Prof. Code 25237)|
|“California Central Coast Counties Dry Wine”||This designation can only appear on a label if all of the grapes are from the counties of Sonoma, Napa, Mendocino, Lake, Santa Clara, Santa Cruz, Alameda, San Benito, Solano San Luis Obispo, Contra Costa, Monterey or Marin. (Cal. Bus. & Prof. Code 25236)|
Related Labeling Considerations
The appellation rules noted above are intertwined with other federal labeling regulations, which may also come into play. For example, if a label includes a varietal and an appellation, 75% of the grapes used in the wine must be of the stated grape type and all of those grapes must come from the stated appellation. (27 CFR 4.23) If the label includes a vintage year and an appellation, 85% of the grapes in the wine must be from the stated vintage year – and if the appellation is an AVA, the percentage requirement rises to 95%. (27 CFR 4.27)
Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2014 · All Rights Reserved ·
October 17, 2013
On June 13, 2013, guests attending ShipCompliant’s “Direct 2013” conference heard from Matthew Botting, General Counsel to the California ABC, on supplier participation in sweepstakes and contests under California’s new law. We’ve previously blogged about the new law here and here.
California Code of Regulations Title 4, Section 106 (“Rule 106”) has always allowed suppliers to “sponsor” a contest, meaning suppliers could give money or otherwise participate when the contest was organized by “bona fide amateur or professional organizations.” Previously, the privilege was limited. Now, the privileges are broader: suppliers (including wineries) can now “conduct” a contest under recently enacted Business and Professions Code Section 25600.1, and conduct or sponsor a sweepstakes under 25600.2. Mr. Botting discussed the different available privileges and their limitations:
* “Conduct” means the promotion is managed and organized by the supplier.
* “Sponsor” means it is someone else’s sweepstakes or contest and the supplier is providing a prize or other sponsorship of the promotion.
* For the time being, suppliers can only sponsor a contest in accordance with the existing Rule 106, which means sponsorship is limited to a contest conducted by bona fide amateur or professional organizations.
* Sponsoring a sweepstakes and conducting a sweepstakes or contest is now covered by Business and Professions Code Section 25600.1 and 25600.2. Sweepstakes or contests cannot require a visit to a licensed premises of any kind, so there must be an alternate method of entry (“AMOE”) if entry forms are available at a licensee.
* Sweepstakes and contests cannot be conducted on retail premises (e.g., a grocery store, liquor store, bar or restaurant). A “retail premise” includes some locations you might not think of, such as: an unlicensed premises if a licensed caterer is present, or at an event held by a nonprofit under a one-day permit. The ABC considers events held with a caterer’s license or a nonprofit one-day permit to occur “at the premises of a retail licensee,” and therefore a supplier may only provide a means of entry at either of these types of events.
* While suppliers may provide a means of entry for the contest or sweepstakes, the contest or sweepstakes may not be conducted at a winery or brewery’s duplicate tasting room.
* A contest or sweepstakes can only be advertised at a retailer if it is advertised at a minimum of three different retailers, and winners shouldn’t be picked at a licensed retail event nor in a tasting room.
The full presentation by Mr. Botting can be seen here (starting at the 5:00 minute mark).
Before conducting or sponsoring any contest or sweepstakes, be sure to consult the relevant laws, Business & Professions Code Sections 25600.1, 25600.2, and, if applicable, Rule 106 (regarding contests), and pay particular attention to whether the supplier involved holds a license that allows it to participate.
Contact one of the attorneys at Strike & Techel if you have questions about contests and sweepstakes in California or other states.
Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2013 · All Rights Reserved ·
December 29, 2011
On January 1, 2012, California Business and Professions Code Section 23394.7 goes into effect, which aims to regulate alcohol sales at self-checkout terminals. The controversial law provides that “no privileges under an off-sale license shall be exercised by the licensee at any customer-operated checkout stand located on the licensee’s physical premises.” The law has been opposed since its inception by grocery stores with self-checkout and has been supported by retail clerks labor unions, among other entities.
The California Alcoholic Beverage Control issued an Industry Advisory to explain the new law last week, and the California Grocers Association (“CGA”) just filed a petition contesting the terms of the Advisory. For example, the Industry Advisory provides in part, “it is clear that ‘customer-operated checkout stand’ means a checkout stand or station that is designated for operation by the customer.” In its petition in the California Third District Court of Appeal, the CGA argues that the ABC overstepped its regulatory authority by defining one of the law’s key provisions in the Advisory, rather than going through the formal rule-making process required by the California Administrative Procedure Act. The CGA also argues that the definition put forth by the ABC is inconsistent with the statute. The CGA has asked that the Advisory be set aside, or that its effect at least be delayed until the issue has been resolved. Check back for updates!
Imbiblog is published for general informational purposes only and is not intended as legal advice. Copyright © 2011 · All Rights Reserved ·
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