CA Jumps on the Alcohol Law Crazy Train with AB 2184
We enlightened souls here in California often like to mock and disparage other states for their strange, weird, anti-consumer and downright dumb alcohol-related laws. We here in CA seem to believe that our relatively liberal and rational alcohol laws are set apart upon a higher plane than those in more back-assed states. I've been quite the mocker myself.
Yet, California appears set to pass a law that defines silliness.
California Assembly Bill 2184, sponsored by Assembly-person Isadore Hall, lays down the conditions under which a celebrity brand owner or a winemaker or a brewer may may go about autographing bottles for consumers. The first thing that is interesting about this legislation is its very existence.
The California Department of Alcohol Beverage Control takes the position that if an activity isn't specifically allowed in the alcohol laws and regulations of California, then it is prohibited. When you think about the implications of this theory of commercial rights as expressed by the California ABC, you really do have to jump aboard the Crazy Train to really wrap your arms around its meaning.
But be that as it may, AB 2184 lays out the conditions under which such autographs by an alcohol producer may be offered to consumers. Why is anyone even concerned whether Joe the Winemaker appears in a store to autograph his bottles for consumers? Tied House Laws.
"Tied House" laws are at the very heart of all post-Prohibition alcohol regulaton. "Tied House" laws strive to assure that producers have no undue influence over retailers and certainly no ownership of retailers, lest they exert so much power over the retailer that said retailer may be forced to undertake dastardly marketing efforts on behalf of the influential producer that may in turn lead to circumstances that promote intemperance. The entire post-Prohibition alcohol regulatory structure, including a mandated three tier system in which producers of alcohol are required to sell their products only to wholesaler middlemen, is a hedge against the creation of retailers that are bound or tied to particular producers.
So, in California and other states, there are strict laws against producers giving "things of value" to sellers of alcohol. The California ABC believes that having a producers come into a retail store or restaurant to sign bottles is a "thing of value". As a result of this interpretation of signing a bottle in a store and as a result of there being nothing in California code that authorizes such a thing, it was determined that a law is required to define how an in-store autograph session may proceed.
Among the conditions n AB 2184 are:
1. Consumers may not be required to buy anything to get an autograph
2. Consumers may not be required to pay a fee to get anything autographed.
3. The store is required to pay for services necessary to carry out the autograph promotion.
These are not unreasonable conditions.
But consider what AB 2184 also says:
1. The retailer where the autographing will occur may advertise the event, but the brand owner who will be doing the autographing may not.
2. Autograph sessions my happen in a retail store, but not in a restaurant.
3. A brand owner may only come to a specific store twice per year to do an autograph session with consumers.
Besides the obvious 1st Amendment violations of the brand owner's right to commercial speech inherent in these latter conditions, there is the inexplicable restriction on having a brand owner go to a restaurant to sign autographs, while retail stores are OK. In addition, someone needs to explain to me why having the same brand owner come to a store twice in a year to autograph bottles is OK, but a third time somehow crosses the line into tied house problems. And finally, with apologies for being repetitious, why would a bill be authored that so obviously violates a brand owner's 1st Amendment right to commercial speech by prohibiting them from advertising the fact that they will be at Joe's Wine Store to autograph bottles?
The problems with AB 2184 stem from the same fundamental problem that haunt the collection of alcohol-related laws in nearly every state: A deep concern with using alcohol regulations to address problems and conditions that existed in 1910, rather than in 2012. It's not just alcohol LAWS that are archaic in nearly every state, it's the thinking and premises that lay at the foundation of alcohol laws in nearly every state that are archaic.
The idea, for example, that having a single celebrity come into a store 3 times a year to autograph bottles threatens the public order is nearly as absurd as the idea that allowing a winery in one state to sell wine directly to restaurant in another state threatens public order. These and so many other alcohol regulations not only serve fears that originated 100 years ago and no longer matter, but now only serve to protect the financial interests who have used 100 year old fears to game the system to their own economic interests.
Good Grief, Charlie Brown! This is the Crazy Train. Excusez-moi, but autographing bottles, discounting, swag gifts, free tours, etc., etc., aren’t these all things we (wine) marketers throw into the mix to ‘add value’ to the consumer’s purchase to build loyalty and repeat business?
Look out! They’ll start defining what is ‘marketing’ next. And who’s to say which winemaker is a celebrity vs. which one who is less well known? This is such a bad, bad idea all around….
Let’s take this reasoning to its logical conclusion: no more medal stickers or shelf-talkers provided by any producer to any retailer. Oh, those things are allowed? Then so are autographs, and thus the bill is moribund. Go ahead Assembly, pass it – it won’t pass judicial muster. There are no more important matters of public interest to address, are there?
next will be author book signings…yes, in bookstores; no, in restaurants.
All these Wine Blogs, Bloggers, Tweets, FB’s and we still can’t reasonable legislation passed concerning wine. Guess all these wine influencers in Social Media are less influential than the Arab Spring.
I had a very funny conversation with a waiter/Sommelier the other day about free goods, he thought that if the distributor or salesperson gave the goods it was illegal but if it came directly from the producer (in this case Vodka) it was fine. He European and has a very hard time understanding such ‘nuances’ in our wine markets.
How does this affect bottles donated for fundraising auctions? Can they be signed prior? Can any bottle be signed prior to purchase if a bottle was on a shelf with out the signing party there? There can be a lot of questions. All of this is only an issue because there is tax revenue involved and that’s why Govt has their hands in it.
From my experience it seems ludicrous to try and enforce this and why is this law even being brought forth? Who is pushing it Tom? I used to have winemakers sign bottles on a shelf and leave the store when they dropped off wine. Will that now be an illegal practice? I guess there is no equivalent for Tobacco, i.e. Cuban cigar makers signing a box of cubans? How about a Gun manufacturer signing guns for an NRA fundraiser?
In my days as a winemaker, I was always embarrassed personally, as well as for the people who asked me to autograph a bottle. I mean, what do the do with them, put them on a pedestal in their cellar for their friends to see? But apparently it still is the thing.
Once, when I was president of a Napa winery, the corporate marketing guys had the bright idea that the winemaker, the vineyard manager and the prez would sign all of the bottles of certain limited release. My office would have a new stack of cases in it each day for a couple weeks and I would have to go thru them all one at a time, of carpal tunnel threatening tedium. That’s when I discovered “the stamp” and had one made with my John Henry allowing me to assign someone else to “autograph” the bottles for me. The winemaker and the vineyard manager quickly followed my example and the whole thing became a silly, exercise meaningless exercise of hand stamping.
I want to applaud the lawmakers of California for giving us an excuse to get out of this stupid practice. I am surprised any thoughtful winemaker would complain.
When the H… are we going to focus on laws and regulations that make sense and improve people’s lives? It would seem that the elected in government .. whether that is in the state assembly or legislature, or the Federal Congress or Senate have forgotten why they were elected.