BC LCLB Warns on Internet Marketing
- Details
- Written by Mark Hicken Mark Hicken
- Category: Retail and Distribution Laws Retail and Distribution Laws
- Published: 05 December 2011 05 December 2011
Wineries and other licensees should be aware that the BC LCLB issued a statement on internet marketing in the October 2011 issue of their “Liquor Line” newsletter which is available on the LCLB website here. The statement warns licensees that the sale or advertising of any liquor product without a license is not legal in BC. It then continues by saying “[t]herefore companies like Groupon or ethicalDeal.com cannot legally include liquor as part of a promotion. Given this, it is not permitted for licensees to enter into and offer these sorts of promotions. (emphasis added)” This wording could be interpreted as prohibiting many third-party marketing companies from including liquor as part of their marketing services or promotions when they are working with a licensee such as a winery or retailer.
The question then arises: is it legal for third party marketing companies to work with licensees at all and, if so, what can they do? It is my view that it is legal for third party marketing companies to work with licensees so long as all parties pay careful attention to structuring their relationships correctly. The issues are basically the same as those faced by the California ABC which recently issued a detailed advisory on these issues (Third Party Providers - PDF) which was created after extensive industry consultation and legal advice. It’s my opinion that the analysis in the California advisory is well done and should also be applicable to British Columbia.
I have confirmed with the BC LCLB that their statement was based on an analysis of the ‘default’ method of Groupon promotion under which the marketing company processes and is an integral part of the sale. However, there are, in fact, many other methods of structuring internet promotions (some of which may be legal and some of which may not) and the LCLB has also confirmed that “each case must be considered on its own merits”. However, the LCLB has not confirmed that they will follow the same principles as have been established in California and there may well now be confusion within the BC industry as to what is permissible and what is not (as there was in California prior to the ABC issuing its ruling). In the interim, licensees should be cautious about internet marking and should obtain legal advice if they are entering into these types of marketing arrangements.
Okanagan Water Law for Wineries
- Details
- Written by Mark Hicken Mark Hicken
- Category: Environmental Laws Environmental Laws
- Published: 19 November 2008 19 November 2008
It's already a major issue for wineries in California. I know that faculty at UC Davis are now considering water needs and ability to survive drought as an important factor when selecting rootstocks for new vineyard plantings. Here in water-abundant Canada, this has historically not been a major concern. But an article in Wine Business Monthly Online shines a light on similar Canadian concerns in its review of the Okanagan Sustainable Water Strategy and the implications for wineries in the region. The article points out that winery use of water is a tiny percentage of overall usage and that conversion to drip irrigation is making industry use of the resource even more efficient.
The legal implications of water usage are still generally a backburner issue. However, occasionally, as the article points out, the Province can use its powers under environmental laws to cut off water supplies to users as happened for some Okanagan wineries in 2003 during a drought. In addition, water concerns can block development, whether residential or otherwise (including wineries), if the development threatens to change water usage or conservation patterns.
CA Winery Settles Host Liability Case for $3 Million
- Details
- Written by Mark Hicken Mark Hicken
- Category: Liability Issues Liability Issues
- Published: 11 December 2009 11 December 2009
I spoke about the issues surrounding "host liability" for wineries at the recent wine law conference that was held in November here in Vancouver. Those of you that were there will have heard my warnings regarding a winery's potential legal liability if an individual who has been served alcohol at the winery is in an accident later that injures either himself or another person.
While I am unaware of any B.C. wineries being in this situation recently, a news story from California illustrates the expensive consequences of a failure to live up to the applicable legal standards. In this case, the Sonoma County winery had hosted a wedding event and served numerous beers to a guest who was, in fact, under age. That guest ended up in a car accident later in the night in which his passenger was seriously injured. The passenger sued the winery, 7-Eleven (who later had sold some additional alcohol to the pair), and the driver. The eventual settlement ended up with the winery shouldering the bulk of the costs.
Host Liability Issues for the Wine Industry
- Details
- Written by Mark Hicken Mark Hicken
- Category: Liability Issues Liability Issues
- Published: 12 December 2008 12 December 2008
The holiday season is upon us. While most of the season generally revolves around a spirited (pardon the pun) and responsible celebration involving wine and other liquor, the issue of legal liability for alcohol service always crops up at this time of year as businesses of all kinds become aware that good times can turn into a problem if someone ends up injuring themselves or others following a seasonal party at which they have consumed alcohol.
I have received a number of inquiries about this issue in the past few weeks so here is a quick (non-comprehensive) summary of the applicable law as well as a few ideas for limiting your liability.
There is one set of rules that I will call "commercial host liability" for restaurants, bars etc... most situations where a business is making money serving drinks. This would definitely include wineries or agencies in situations where they are either charging for wine, running a tasting room/event, or selling or promoting wine as an adjunct to an event. On the commercial host side, the rules are pretty strict in that the business has a fairly high duty of care toward a patron who has had too much to drink and they can be found liable if they don't do enough to prevent that person from injuring either themselves or someone else. All wineries and agencies should have staff trained to recognize liability and alcohol service issues for these types of events. You can read more on commercial host liability in the Supreme Court of Canada decision of Stewart v. Pettie (2005) which is the leading decision in this area.
On the other side, there are a set of rules for "social host liability" which basically apply to private parties. A more recent (2006) Supreme Court of Canada decision, Childs v. Desmoreaux, has found that, for the most part, social hosts do not have a duty of care to their guests and those guests are responsible for their own behaviour. If you are interested, you can read about this decision in this article or here.
Starting or Licensing a Winery in BC
- Details
- Written by Mark Hicken Mark Hicken
- Category: Winery Licensing Winery Licensing
- Published: 23 August 2011 23 August 2011
This is a short guide to the unconventional approach to licensing wineries that BC has adopted. In most jurisdictions, it is possible to read through the winery licensing requirements within the applicable laws ... in other words, it is fairly easy to discover what the requirements are for obtaining a license. However, in BC, this is not the case. There are some requirements listed in the Liquor Control and Licensing Act. However, the most onerous requirements are imposed by the Liquor Distribution Branch, which may not have the statutory jurisdiction to regulate the manufacture of wine.