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UPS and FedEx Approved as Direct-to-Consumer Alcohol Carriers in North Dakota

Following North Dakota’s implementation of SB 2147 last week, which is explained in detail here, North Dakota announced that alcohol carriers FedEx and UPS have submitted applications and are now approved for shipping direct-to-consumer orders into North Dakota through the end of the year. SB 2147 updated the existing direct shipping law with the requirement that alcohol carrier and fulfillment logistics companies get “Alcohol Carrier” and “Logistics Shipper” licenses, respectively, in order for wine direct shippers to use their services for shipments to North Dakota consumers. FedEx and UPS therefore may now be used for wine direct shipping by North Dakota licensees who ship from their licensed premesis.

Wineries and Retailers licensed to sell and ship to North Dakota consumers should remember, however, that until logistics shippers (aka fulfillment warehouses) are licensed under SB 2147 requirements, only in-house fulfilled orders can be shipped. North Dakota periodically publishes a list of licensed entities on their website located here under the link title “List of Alcohol Licenses”.

Update 10/15/2013:
FedEx will halt shipments effective November 1st, 2013. Please see this post for more information.

Logistics Shippers and Carrier License Applications Required in North Dakota

An update to North Dakota’s existing direct shipping law is going into effect today, August 1. Passed earlier this year, the new law maintains much of the existing law surrounding direct shipping, but also adds two new licenses, “Logistics Shipper License” and “Alcohol Carrier License”, in addition to new shipment reports.

Since April of 2010, fulfillment warehouses have been prohibited from shipping into the state on behalf of their winery or retailer clients. Effective today, a fulfillment warehouse can ship into the state once they apply and are approved for a “Logistics Shippers” license. Also effective today, an “Alcohol Carrier” license is required for any carriers shipping direct-to-consumer orders into the state; this includes common carriers such as FedEx and UPS. According to a recent newsletter sent out by North Dakota’s Office of the State Tax Commission,

“All direct shippers, logistics shippers, and alcohol carriers MUST be licensed BEFORE shipping… and must ensure the alcohol beverage is being shipped and delivered by licensed direct shippers, licensed logistics shippers and licensed alcohol carriers.”

No Logistics Shipper or Alcohol Carrier licenses have been issued as of yet. This means that, in effect, until carriers become licensed, direct shipments into North Dakota will not be compliant. Alcohol Carrier and Logistics Shipper licenses may take a week to be processed.

Licensees should also be aware of new shipment reports. The law now requires each of the three aforementioned types of licensees to electronically report shipments into the state. Each licensee must keep records and will be required to report the name and license number of the other licensees they used for each shipment. All licensees will be required to report the name and address of the recipient, the type and quantity of alcohol shipped, and tracking numbers. Direct shippers may file the existing annual electronic report for all 2013 shipments (“Schedule H” for sales of liquor and wine); the new direct shipper reporting requirements will go into effect beginning with the 2014 filing period. Alcohol Carriers and Logistics Shippers must report monthly. To ease the reporting burden, the Office of State Tax Commissioner publishes license names, numbers and addresses of licensees on their website.

ShipCompliant clients should note that we added “Carrier Prohibited” rules for FedEx and UPS to our database that will cause all shipments to North Dakota to be not compliant effective today. Once we receive confirmation that the carriers are licensed, we will remove each rule to allow shipments from approved Alcohol Carriers. Similarly, we applied a “Third Party Shipper Approval Required” rule to North Dakota that will cause shipments from non-approved fulfillment houses to fail compliance checks. Currently, no fulfillment houses are approved, but we will update this rule immediately after getting confirmation of each approved Logistics Shipper.

Application Links:
Alcohol Carrier License Application
- $100/year
Logistics Shipper License Application
- $100/year
Direct Shipping Permit Application
- $50/year Renewals will be sent out in November for the 2014 licensing period

Kentucky Election Day Bill Creates New License for Out-of-State Wine and Spirits Suppliers

All out-of-state wine and distilled spirits suppliers that sell to Kentucky distributors are now required to obtain an “Out-of-State Distilled Spirits/Wine Producer/Supplier License” following the passage of SB 13 in April. Before this bill became effective on June 25, 2013, suppliers still needed to register their brands with the ABC prior to selling to Kentucky distributors but did not need to obtain a license. In an informative fact sheet, Kentucky explains SB 13 was “…a much needed ‘clean up’ of existing statutory problems and inconsistencies that existed in Kentucky law without changing or expanding existing license privileges.” By now, most current out-of-state wine and spirits suppliers have received an application packet from the Kentucky Department of Alcoholic Beverage Control to apply for the new license, needed in order to continue selling to their Kentucky distributors.

SB 13, originally a bill to allow for sales of alcoholic beverages on election days, went through several amendments that also added changes to current law in regards to sampling allowances, elections of wet/dry location changes, and numerous updates to the alcoholic beverage licensing system. These added amendments included the creation of the Out-of-State Distilled Spirits/Wine Producer/Supplier Licenses and accompanying fees:

  • “Out-of-state Distilled Spirits/Wine Producer/Supplier” – 50,000 gallons or more produced imported annually. $1550/year or $3100/two years
  • “Limited Out-of-State Distilled Spirits/Wine Producer/Supplier” – 2001 to 49,999 gallons produced imported annually. $260/year or $520/two years
  • “Micro Out-of-State Distilled Spirits/Wine Producer/Supplier” – 2000 gallons or less produced imported annually. $10/year or $20/two years

If you are an out-of-state wine/spirits supplier that has not yet applied for the new license, or if you wish to begin selling to Kentucky distributors, fill out the application for an Out-of-State Distilled Spirits/Wine Producer/Supplier License and submit to the state, or contact the Kentucky ABC at (502) 564-4850 for further assistance.

UPDATE: License fees are based off of gallons imported into the state of Kentucky on an annual basis-not overall annual production.

Texas Eases Requirement for Direct-To-Consumer Licensing

The direct shipper permit application process has just become a little easier. The Texas Alcohol Beverage Control Commission (TABC) has determined that it is no longer necessary or appropriate to require every Out-Of-State Direct Wine Shipper permit applicant to submit a bond with its application.

As of November 15, 2012, the only direct shipper applicants required to furnish a bond with their application are those who have outstanding debts of $500 or more for a tax or fee imposed by the TABC. This change applies both to wineries looking to renew their Direct Wine Shipper permits and to new applicants. As always, wineries shipping to Texas consumers must have a valid Out-of-State Direct Wine Shipper permit and are required to pay sales and excise taxes. The total cost of a two-year direct shipping permit remains the same, at $526.00.

- Annie Bones, State Relations – Wine Institute

Virginia DTC Fulfillment House Regulations; ABC Endorses Winery/Fulfillment House Contract Addendum Format

In July, 2009, Virginia ABC notified Virginia Wine Shipper licensees they were prohibited from contracting with third parties for selling and shipping wine into Virginia. Since then industry has been working with Virginia ABC to outline allowable uses of third parties. The culmination of these efforts was a new Virginia regulation which took effect in November 2012 that defines how out-of-state Fulfillment Warehouses can secure the necessary approvals from Virginia ABC to continue to do business with Virginia Direct Shipper licensees.

In a temporary work-around, Virginia ABC has allowed Direct Shippers to hold more than one direct shipping license and submit separate monthly shipment reports for each shipping location. This workaround remains in place until existing extra licenses expire (one year from issue) giving Direct Shippers and Fulfillment Warehouses time to secure the new approval. Wineries must continue to maintain their primary Virginia Direct Shipper license, but no licenses for additional fulfillment locations will be approved.

In order to gain the one-time written approval via letter from the Virginia ABC, Fulfillment Warehouses must, for each winery they represent:

  1. Provide Virginia ABC with a copy of the Fulfillment Warehouse’s valid, home state public warehouse license.
  2. Provide a written agreement between the Fulfillment Warehouse and the licensed Direct Shipper, listing all shipping locations and indicating the Fulfillment Warehouse is the agent of the Direct Shipper for purposes of complying with Virginia law. Please click here for a sample of a winery/fulfillment house contract addendum that has been recently endorsed by Virginia ABC to satisfy this requirement.
  3. Maintain for 2 years and make available to Virginia ABC upon request, records of each shipment, including 1) quantity and volume, 2) brands shipped, and 3) names and addresses of Virginia recipients.

Also as of November 2012, Virginia Direct Shipper licensees are no longer able to accept orders from Virginians made through a third party marketer that are not an “agricultural cooperative”. The most common unlicensed third party marketers (marketing portals, third party providers, TPPs, flash sites, e-mail marketers or collective web site hosts) cannot satisfy these requirements and are banned from selling into Virginia on behalf of wineries. If you use such marketers that trigger sales in Virginia, you may wish to discuss this new law with your contractor, as your Virginia Direct Shipper license is at stake.

Contact Terri Cofer Beirne at tbeirne@wineinstitute.org with any questions about these Virginia laws.

- Terri Cofer Beirne, Eastern Counsel, Wine Institute

The First of May Brings the First of Direct Wine Shipping to the Garden State

Spring brings more than flowers this year for supporters of direct shipping. After three and a half months of anticipation and preparation, the New Jersey Division of Alcoholic Beverage Control posted checklists, forms and applications on their site, making S 3172 a reality for the wine industry. Effective May 1, New Jersey is accepting applications for the Out-of-State Winery License from wineries producing less than 250,000 gallons (roughly 105,000 cases) annually. Annual production dictates the fee for the new license:

  • Less than 1,000 gallons – $63
  • Between 1,000 and 2,500 gallons – $125
  • Between 2,500 and 30,000 gallons – $250
  • Between 30,000 and 50,000 gallons – $375
  • Between 50,000 and 250,000 gallons – $938

In addition to the listed winery license fees, New Jersey will make out-of-state wineries work hard for entry into the 40th U.S. state to allow direct shipping. The latest information indicates out-of-state wineries must: 1) register their business with the Secretary of State ($125); 2) register their business with the Division of Taxation for payment of state sales and excise taxes; 3) post a beverage tax bond (ranging from $1,000 to $1,000,000 depending on anticipated sales); and 4) submit the license application with the fee, outlined above, to the New Jersey Alcoholic Beverage Control (NJ ABC). New Jersey also requires all products shipped into the state to be brand-registered at a cost of $23 per label.

In an unanticipated twist, corporate laws in New Jersey require any foreign (non-New Jersey) corporation that secures a license from a state agency (for example, a wine shipper’s license from the NJ ABC) to establish nexus with the state. With this nexus, out-of-state winery licensees must also annually file corporate income tax and pay a minimum of $500/year, depending on gross revenues. Partnerships are also subject to a tax of $150/partner/year and annual filing. All wineries applying for the license should be aware that they are subject to this requirement.

On top of direct shipping capabilities for Out-of-State Wineries, with the payment of an additional fee (from $100 to $1000 depending on annual production), licensees may ship directly to New Jersey retailers. Common carriers are not allowed to ship these orders to retailers, and price posting is required on products for sale to retailers. Additionally, licensees have the option to open up to 16 tasting rooms within New Jersey for a fee of $250/site.

Here are the forms referenced in New Jersey’s checklist and instructions, in order of appearance:

We realize that the application process in New Jersey is a little daunting, so ShipCompliant has already geared up EasyWineLicensing.com to facilitate the licensing process. Visit www.easywinelicensing.com before May 15th with the coupon code “EWLNJ” and save 35% off ShipCompliant service fees to obtain a New Jersey direct shipping license.