The California ABC has issued so many Coronavirus (COVID-19) updates that it’s hard to keep them all straight. Their Third Notice of Regulatory Relief came out on April 21, and it covers virtual wine tastings: the latest rage in wine marketing. We’ve compiled our own FAQ in case you’re confused:
1. What is a virtual wine tasting?
“Virtual wine tasting” is not defined in the ABC’s relief, but they mean wine tastings (“a presentation of samples of one or more wines . . . for the purpose of acquainting the tasters with the characteristics of the wine or wines tasted”) that are not taking place at the winery’s licensed premises. Under stay at home provisions, virtual wine tastings mean streaming video calls or online videos + home tasting kits.
2. Why does this matter?
Subject to local zoning permissions, one of the many awesome privileges that wineries enjoy is being able to either sell or give away tastes of their wine to consumers from a tasting room. This is how many wineries convert first-time visitors into wine club members and how travelers to California fall in love with wine. But this is the exception to the rule that alcohol licensees can’t give alcohol away for free or as an incentive for making a purchase. It turns out free alcohol is pretty persuasive in getting you to buy more alcohol once you have drunk said free alcohol, so the ABC has very limited exceptions so that the alcohol doesn’t flow too freely. The ABC probably got an earful from the industry about how virtual tastings could help the wine industry make up some of the losses caused by the closure of tasting rooms, restaurants, wine bars and hotels, and is doing everything it can lately to make it easier for licensees to sell alcohol within the bounds of good policy and good taste.
3. What can you do now that you couldn’t do before?
Normally, wineries can’t give away wine, unless it’s a sample from their tasting room or falls under other limited circumstances not covered here. Unless permitted by an exception, wineries can’t give away free anything in connection with alcohol (including free shipping – which is temporarily legal under the ABC’s Second Notice of Regulatory Relief). But if tasting rooms are closed due to Covid-19, either wineries can’t continue to give away free tastings, or there are some relaxing of the normal rules. The ABC’s response is to permit:
Free shipping of wine “samples” for the purpose of conducting a “virtual tasting” and
Free wine samples, “provided that they are part of a sale of wine or other products”
4. What’s a wine “sample” that I can send to consumers?
The wine that you send to consumers for tasting is more than likely full bottles of wine. The ABC says that it could be small tastes, but only if it’s sent in “a manufacturer’s sealed container.” That container also has to meet the federal regulatory guidelines for labeling and standard of fill, so unless you’ve invested in single-serve containers for all of the wines you want to taste with consumers, you’re sending a full bottle of wine. You can also only send the free samples if they are “part of a sale of wine or other products.” That means you have to sell the consumer “wine or other products” for them to get their free sample.
5. Can I send these samples out of state too?
The ABC notes that this is just for samples sent to consumers in California. If you’re going out of state, check with the local ABC websites in each state, or check out the Wine Institute’s chart covering states that have provided guidance regarding virtual wine tastings.
6. What should I do?
In most cases, wineries will just sell the wine and the tasting. It’s expensive to give away full bottles of wine and very few wineries have planned for smaller tasting samples in TTB-authorized standards of fill. It may finally be the opportunity for the wine industry to invest in alternative standards of fill if wineries can give them away as samples. As consumers are looking for easy consumption options at home, single-serve becomes a lot more appealing. Otherwise, if you send me a free sample (and please do, lawyers are wine drinking humans stuck at home too), please send me an invoice for the wine, your tasting room staff’s time, or other products you sell (I like snacks too).
If you have more questions that we didn’t cover or specific to your situation, please reach out or talk to your legal counsel.