Is Massachusetts the Most Important Change Since Granholm?

The opening of Massachusetts for direct shipping is perhaps the most important change to the direct shipping market since the Granholm v. Heald Supreme Court decision in 2005. We estimate that within three years of opening for direct shipments on January 1, 2015, Massachusetts will easily vault into the top ten states by shipping revenue and represent over $60 million in additional revenue for wineries that ship.

Let us explain.

The value of opening up any given state for direct wine shippers is, we find, related to three primary factors:

1. The state’s population
2. The state’s proximity to an important wine producing state/region
3. Per capita consumption of the state

Massachusetts’ Population
Massachusetts has a population of approximately 6.6 million people, just above the national average of 6 million people per state. It is similar in population size to Tennessee, Indiana, Arizona and Washington State. While not a hugely populated state, it is by no means sparsely populated.

Massachusetts’ Proximity to a Wine Region
Massachusetts has a very small wine industry. However, it borders New York, an important wine producing state and wine tourism venue. This bodes well not just for New York wineries, but it suggests that Massachusetts wine lovers will benefit from easy access to wines they have recently discovered on day trips and weekend excursions.

Per Capita Wine Consumption in Massachusetts
Only five states have a higher per capita wine consumption rate than Massachusetts. At 29 bottles of wine consumed per person annually, Bay Staters consume wine at more than a 50% greater rate than the average state. They like their wine.

Given these factors, and looking at how similar states, in terms of consumption and location, rank in the direct-to-consumer shipping channel, we believe that Massachusetts wine lovers will have wine shipped to them at a significantly higher rate than the average state.

For the overall winery-to-consumer shipping market, 0.213 bottles of wine per capita were shipped in 2013. However, the top 10 winery-to-consumer shipping states averaged 0.276 bottles per capita. We have every reason to believe that Massachusetts will hew closely to this average within three years after the state opens for shipments. In fact, we are confident is saying that by 2018, three years after Massachusetts finally opens for direct shipping, it will generate more than $73 million in wine shipments and rank #7 for value of shipments among all legal states. Sales for DTC By 2023, the value of the Massachusetts direct shipping market will be over $100 million per year.

A number of people and organizations have worked very hard to open up Massachusetts for direct shipping and to give Massachusetts consumers the simple right to buy the domestic wines they desire, especially Coalition for Free Trade, Free the Grapes!, and Wine Institute. Many years, much lobbying, lawsuits, more lobbying, working the media and harnessing the power of the consumer finally brought it about. It’s not only long in coming and a sweet victory for everyone, but also a very profitable victory for wineries across the country.

Direct Shipping To Massachusetts–Finally!

massachusetts blog logo3Eight years after Massachusetts passed an unworkable and overly-restrictive direct shipping bill, and four years since the same law was ruled unconstitutional by a federal court, Bay State legislators finally passed a workable direct wine shipping law that will allow out-of-state and in-state wineries to ship wine directly to state residents. The new law was included in the 2014 budget bill (see page 257), and was signed by Governor Deval Patrick this morning. Set to go into effect on January 1, 2015, the new wine shipping law will make both wineries and Massachusetts wine lovers overjoyed.

Massachusetts is ranked among the most important states that still had not passed winery direct shipping law. Massachusetts is particularly important given the size of its population and its residents’ love of wine. Only four states have higher per capita consumption rates for wine than Massachusetts.

The new direct shipping law, passed as part of the 2015 fiscal year budget, provides the following conditions for shippers:

  • Only bonded wineries may apply for a direct shipping permit
  • Direct Shipping License Fee: $300/winery (separate permits required for each “affiliate, franchise or subsidiary”)
  • Direct Shipping License Annual Renewal Fee: $150
  • Shipments limited to twelve 9-liter cases per purchaser in a calendar year
  • Reports to the state must be remitted annually
  • Excise Taxes must be remitted on each sale

 

Over the next six months, the Massachusetts Alcohol Beverage Control Commission will be responsible for creating and making available license applications for direct shippers. We will report here on those developments as well as any others that impact direct shippers.

Will Massachusetts Lawmakers Finally Act?

In January of 2010, the United States Court of Appeals for the First Circuit affirmed the judgment of the District Court in the case of Family Winemakers of California v. Jenkins. This ruling struck down the 30,000 gallon capacity cap, which excluded 98% of domestic wines from shipment to Massachusetts. Although this represented a big win for wineries, several problems remained, and it was up to the Massachusetts legislature to act.

Almost four years later, Bay State lawmakers will once again try to craft a replacement law and move it through the legislature. The first and most important step is a public hearing on Direct Wine Shipping in Massachusetts to be held in Boston on Tuesday, November 12 at 1pm Eastern Time in the Joint Committee on Consumer Protection and Professional Licensure.

Bill H.294, sponsored by Representative Ted Speliotis, is one of five bills related to direct shipping listed in the hearing schedule. It would allow wineries to ship up to 24 cases per year to individual consumers in Massachusetts, require annual volume reporting to the state and remittance of excise and sales taxes to the state.

One key issue that must be addressed to make any direct shipping law effective is that of a “fleet permit” for common carriers. A fleet permit allows common carriers like FedEx and UPS to obtain a single permit for alcohol deliveries that covers all their trucks in the state, in contrast to regulations that require a permit be obtained for each and ever delivery truck. Without a fleet permit as part of a direct shipping bill, it is unlikely that the major common carriers would deliver wine into Massachusetts no matter how good the rest of the bill might be.

Additionally, the current direct shipping law on the books has a “consumer aggregate” volume limit, which allows consumers to only receive a limited amount of wine within a calendar year from all sources. This kind of aggregate limit is mostly un-workable, as wineries have little idea what consumers have already received. The aggregate volume limit is not included in H.294.

Behind Pennsylvania (population 12,702,379), Massachusetts (6,547,629) is the second largest of nine states that are currently off limits for wine shipments. The other states include Alabama (4,779,736), Kentucky (4,339,367), Oklahoma (3,751,351), Mississippi (2,967,297), Utah (2,763,885), Delaware (897,934), and South Dakota (814,180).

Additional Resources:
Free the Grapes! Press Release
Huge win for wineries, but can I ship to Massachusetts now?
Why Can’t I Have a Boston Wine Party?
Massachusetts Remains Elusive for Direct Shippers

2013 Wine Compliance Legislative Updates and a Virtual Seminar Invitation

You may remember reading our posts highlighting what to look for in the legislative season back at the beginning of 2013. Now that many legislative sessions are starting to come to a close, here is a quick check-in on this year’s legislative changes, all of which will be addressed in detail at the ShipCompliant Direct Wine Sales Virtual Seminar, scheduled for October 17th. Reserve your spot today for a complete update on the 2013 wine direct shipping world.

How did the Direct Shipping Bills Stack Up?

Pennsylvania and Massachusetts were the headlining states this year once again when it comes to opening up new states to direct shipping. Although neither state passed a bill prior to the summer recess, legislatures are back in session in both states and direct shipping remains a possibility.

Montana HB 402 will become law tomorrow (Tuesday October 1, 2013), effectively replacing the wine connoisseur’s license with a direct shipping “endorsement” available to Montana wineries and to out-of-state wineries holding a Foreign Winery License. Check out our previous blog post for more detailed information on obtaining this endorsement.

Arkansas Act 483, originally HB 1749, opened up limited direct shipping to the “Natural State” for wineries. The state is still finalizing how they will regulate this new law, which took effect mid-August, but this previous post provides a detailed summary of the Act.

Streamlined COLA Processing

The TTB continues to revamp their website and accept feedback from the industry. Review the status of the COLA Streamlining Accomplishments and Long-term Initiatives on the TTB website.

Existing Direct Shipping Laws, Reworked

Nebraska LB 230 passed and became effective on September 6, 2013. We highlighted the details on the bill that adds new restrictions to the wine direct shipping process.

North Dakota SB 2147 created two new licenses that will allow for wine direct shippers to utilize licensed common carriers and fulfillment houses. This bill took effect August 1, 2013.

Product Registration Updates

In Arkansas, HB 1480 became effective mid-August, and beginning October 15 suppliers will be able to register their products online under the new requirements outlined in this bill.

Reserve your spot today for a complete legislative update and more during the ShipCompliant Direct Wine Sales Virtual Seminar!

Is the Marketplace Fairness Act Fair for Wineries?


In short, yes, for a couple of reasons:

1. Wineries already pay sales tax in most states
2. The vast majority of wineries will likely be exempt from the law

So what is it, exactly?

Senate Bill S. 743, more commonly known as the “Marketplace Fairness Act“, is a pretty simple bill that would give states the ability to require out of state businesses that have “remote sales” in excess of $1 million annually to remit sales taxes. Each state would be able to opt in to the Act, but only after they have simplified their tax structure, either by joining the Streamlined Sales and Use Tax Agreement or to follow the steps outlined in the bill to simplify their sales tax requirements.

Will it pass?

With broad bi-partisan support, S. 743 passed out of the Senate with a vote of 69 to 27. However, a tough battle is expected in the House, and therefore the Marketplace Fairness Act has a long way to go before it is enacted with a signature from President Obama. Amazon.com is supporting the bill (presumably because they would like to move forward with their plans to build warehouses in each state to support same-day shipping), while eBay is one of the main voices in opposition.

What will it mean for wineries?

A lot hinges on the definition of “remote sales”. Keep in mind the fact that state legislation to allow wine shipments typically includes a provision that also requires wineries to register for and pay sales tax. As it stands in the Senate version, and based on our interpretation of the current language, sales by wineries to states where they are already required to pay sales tax would not be counted when considering the $1 million threshold for remote sales.

Based on some quick analysis, there are a few hundred wineries in the US that ship more than $1 million worth of wine to consumers each year. BUT, if you include sales only to those states (Alaska, Colorado, D.C., Florida, Iowa, Kansas, Minnesota, Missouri, New Hampshire, Oregon, and Wyoming) that do not require wineries to pay sales tax, then we estimate that less than 25 wineries would exceed the $1 million cap. In other words, the vast majority of the 7,000+ wineries in the US would be exempt from this law.

Wineries are already accustomed to calculating, collecting, and remitting sales taxes in most states. So, for those wineries that would not be exempt from this law, it would probably not be that big of a deal to add a few more states (initially the states of Iowa, Kansas, Minnesota, and Wyoming) to the list of states to which they would be required to remit sales tax. They already have the technology and processes to do so.

The bill would take effect, at the earliest, on October 1st, 2013. Once effective, the 22 “Streamlined” sales tax states would begin requiring sales tax for remote sellers with over $1 million in sales. After that, each of the remaining 28 states would choose whether to opt in to the Act and start requiring sales tax from remote sellers.

What to Look for in Wine Compliance in the Coming Year

As we like to do at the beginning of each year, we once again look into our crystal ball and offer you some informed prognostications as to what the world of wine direct shipping might have in store for the coming year. While we don’t see any negative trends impacting the compliance world in the next year, we do anticipate the continuation of certain trends of which we believe you should be aware.

Here are our picks for important compliance trends to keep a close eye on in 2013

1. Limited But Important Direct Shipping Changes

Wineries now enjoy the opportunity to ship into 40 states (including Washington D.C.). The remaining closed states are predominantly those that have given little hint of changing their policy. However, we once again have our sights trained on two states where we believe some opening in the direct shipping landscape might occur: Pennsylvania and Massachusetts.

Pennsylvania has considered direct shipping legislation for the past few years, but so far the direct shipping initiatives have become more or less attached to the heated battle over the privatization of the Pennsylvania Liquor Control Board (PLCB). The privatization battle will wage on concurrently with efforts to “modernize” the PLCB. Direct shipping is reportedly part of a six-point plan to modernize the state control system. A sticking point for direct shipping legislation will be how to deal with the 18% “Johnstown Flood Tax” that is applied to sales through the state system.

Massachusetts also saw a direct shipping bill in play in 2012 for the third straight year, but it went nowhere. This non-action occurred despite the fact that a 2010 Federal Appeals Court decision ruled the current wine shipping law in the state unconstitutional and despite Governor Deval Patrick’s stated support for direct shipping. We expect another tough battle in the Bay State over this issue in 2013.

2. Changes to COLA Processing at TTB

Over the past couple of years the TTB has given every indication that they are going to completely overhaul the process of obtaining Certificates of Label Approval (COLAs). It still remains a fact that one must get a federal pre-approval through the COLA process before bringing a new product to market. However, given the increase in new products and decreased budgetary resources at the TTB, this crucial federal agency is looking for ways to decrease the burden that administering the pre-approval of labels places on them.

Toward this end, TTB has taken steps to make it easier for suppliers to make adjustments to labels without applying for a new COLA. We expect the TTB to continue to move towards a more streamlined pre-approval process this year. This process will not happen overnight, but will force suppliers, wholesalers, and state agencies that depend on the COLA for different purposes to review and adjust their processes.

3. Privatization and Modernization

While it is probably too early to pass judgment on the recent move in Washington State voters to privatize the state liquor control system, it can be said with some assurance that other states currently involved in one way or another with alcohol sales will look closely at privatization. A move in Pennsylvania to privatize alcohol sales has been underway and debated for a couple years now with the governor behind the effort. Other control states are also looking to modernize their control systems to add more value for their constituents and to get out ahead of privatization pushes.

Larger retailers tend to support privatization, while wholesalers and small retailers are typically wary. All eyes are on the ongoing transition in Washington State.

4. Regulating Third Party Providers (TPPs)

Last year we predicted that more Third Party Providers (unlicensed marketers using their reach to advertise wine products) would get into the business. With both Amazon and Facebook now doing just this, we have pretty clear evidence that third parties are investing in the wine vertical. The key to opening up the TPP landscape was the Advisory by the California Alcohol Beverage Control issued in 2011 that laid out the special method by which TPPs and suppliers had to structure their relationships.

Other states are now looking closely not only at the California model but are also considering exactly how to regulate and enforce this new advertising channel in their own states. We expect to see other advisories and clarifications coming from states addressing how TPPs and suppliers can work together compliantly.

Finally, if states take a position similar to California’s view of the marketplace channel, we would not be surprised to see other niche players enter this vertical, helping suppliers to reach a larger wine buying audience.

5. Revisions to Direct Shipping Regulations

Since the Granholm Supreme Court decision in 2005, numerous states somewhat quickly addressed and changed their direct shipping laws and regulations. After seven years with new regulations, many states we believe will revisit their laws and make adjustments.

In some cases we see changes in the capacity caps that currently restrict the size of the winery that can ship direct. In other cases, we would not be surprised to see some states lift restrictions on how fulfillment houses ship into their states as well as changes to report and tax filing regulations. The hope is that these changes make both compliance reporting and state agencies more efficient while also giving the state agencies the tools they need to maintain a level playing field.

6. Changing the Product Registration Process

For decades, state product registrations have been done with paper. As more and more products enter the marketplace, state response times have slowed. This has been exasperated by budget cuts to various state regulatory agencies in the wake of the recession and state budget deficits. The response has been to work to bring state product registration into the 21st century by allowing them to be submitted online and responded to online.

ShipCompliant’s own PRO (Product Registration Online) system has been adopted by a number of states to help speed up and make more efficient the product registration process, driving improvements in efficiency both for suppliers and the state agencies. We expect the pace of implementing online product registration to increase in 2013 for the same reason it initially was instituted in a number of states: budget cuts, efficiency efforts and modernization pushes. This will also be accelerated by TTB’s push to redefine the concept of a COLA, which is currently a resource that states depend on as part of their state label approval processes.