WineLaw.ca

BC Election and the Wine/Liquor Industry

BC goes to the polls this coming Tuesday, May 14th. There is a good summary of the various parties' platforms as they relate to the hospitality and liquor industry (assembled by the BC Restaurant & Foodservices Association) here: Restaurant News Special Edition BC Election 2013 (PDF). You can read through the answers contained there and judge for yourself which party may be more likely to reform BC's liquor laws. In addition, as of Tuesday, the BC Conservatives announced that they would permit beer and wine sales in supermarkets and corner stores should they win the election (which, of course, is very unlikely given their poll numbers). Regardless of the election outcome, it appears that there may be a possibility of some reforms under a new administration. Both branches of government which deal with liquor will have new top bureaucrats after the election: Blain Lawson was recently appointed as the new general manager of the Liquor Distribution Branch and, on Tuesday, the general manager of the Licensing Branch, Karen Ayers, announced that she would retire as of the end of June. I'm keeping my fingers crossed that the new government will realize that a sweeping modernization of BC's liquor laws is needed and that the current post-prohibition era regulatory regime should be replaced with a more contemporary approach (see this article by Peter Mitham for good background on our system: Shaped by Legislation - A History of Wine in BC).    

BC Liquor Licensing Boss Leaving LCLB

The General Manager of BC's Liquor Control & Licensing Branch has announced that she is leaving the LCLB at the end of June to retire. Karen Ayers has been the General Manager of the LCLB since 2006. She has been involved in many liquor regulatory issues that have been reported here including charity wine auctions, corkage, liquor in movie theatres, under age shows, special occasion licensing and the liquor privatization project.

PST/HST Transitions Cause Major BC Revenue Loss on Liquor

According to the latest financial figures from the BCLDB, the transitions back and forth between the PST and HST will cause major losses to the total revenue that the provincial government generates from liquor sales in the province. By my estimates, the losses are at least $185 million over the time period. The losses were caused because BC raises liquor revenue through a complicated mix of "liquor board markup" and taxes which mixture was upset by the PST/HST transitions as well as by missed LDB revenue targets and a significant increase in LDB operating costs. The losses are not immediately obvious from looking at the LDB documents because LDB financial statements do not include sales tax revenue. However, once you factor in sales tax revenue from liquor sales, the losses become apparent. Here is a summary chart (in millions of dollars):

*Sales tax numbers would likely be greater than 10% or 7% of the total LDB sales numbers since some of the product would be sold through licensees who charge higher prices than the LDB but for ease of calculation and to be conservative, I have just used the base number.

As has been noted here earlier, when the HST was introduced, the combined federal/provincial sales tax rate on alcohol went down from 15% (10% PST + 5% GST) to 12% (5% Fed portion + 7% Prov portion). This would have created a reduction in consumer prices ... except that the government raised "liquor board markup" rates (e.g. the markup on wine went up from 117% to 123%) at the same time to eliminate any savings and with the intention of keeping provincial government revenue constant. The plan was to increase net LDB revenue to government in order to compensate for the loss in sales tax revenue. So for example, in the LDB's pre-HST service plan (page 19), one can see that LDB revenue was supposed to jump up following the introduction of the HST: for 2010/11 the projection is 973.7 (million) then 1013.5 for 2011/12 and 1039.2 for 2012/13. It is apparent from the above figures, that government revenue did not remain constant during the transition years because the LDB failed to meet its revenue targets and LDB operating costs increased substantially during the years in question, eating up some of the higher liquor board markups and preventing the intended increase in LDB revenue to government which was supposed to offset the decrease in sales tax. This can be seen from the numbers above:

• In the fiscal year 2009/10 (pre-HST), the government received $877.3 million from LDB revenue. It would also have received the 10% PST charged on all liquor sales - $285.4 million for a total of $1.16 billion.
• By contrast, in the fiscal year 2011/12 after the HST was introduced, LDB revenue jumped due to the liquor board markup increase, but only by $21 million, to $911.1 million (well short of the projected number noted above). The corresponding sales tax revenue would have dropped by over $60 million to about $202 million, giving government total liquor revenue of $1.13 billion, a $50 million decrease overall.
• As of April 1 2013, the liquor board markup rates went back down and the sales tax went back up but liquor revenue in BC is still not meeting pre-HST expectations (even though liquor sales and revenues were up across Canada during this time period).
  
• If we look at the LDB projection for 2013/2014 and 2014/15 with the PST returned, the revenue loss is confirmed. In these years, the LDB is forecasting LDB revenues which are significantly less than the amounts from 2009/10 even with higher overall sales numbers.
• The numbers are contained in the latest LDB Service Plan which is available from the BC Liquor Stores web site (earlier numbers are available from earlier service plans and annual reports).  

My estimate of the overall loss to government over the period looks to be at least $185 million. If nothing else, these major losses should cause BC's next government to reconsider the current approach to raising money from liquor sales, which relies on the complicated mix of taxation and "liquor board markups" described above. By contrast, if the government simply raised its liquor revenue from straightforward taxes on liquor (such as a version of Alberta's flat liquor tax) then none of the above would have happened ... and government would have been able to rely on a consistent and stable source of liquor taxation revenue. Please let me know if you have any comments or corrections to the numbers set out above.

Privatization, Trade Issues and Fraud

Wine law remains in the news this spring with a host of interesting stories ...

Privatization. The liquor distribution privatization effort continues in Pennsylvania which is one of the few U.S. states that retains a "Canadian style" government control system for liquor. The privatization bill has now passed the state congress and is headed for the senate: see Corbett Pushes to Advance Liquor Privatization. This commentary from the Huffington Post is relevant to Canada as the issues related to "prohibition era" thinking are also relevant to most Canadian provinces: Pennsylvania's Medieval Wine and Spirits Laws. 

Trade Issues on Wine. The U.S. Trade Representative to Europe is complaining about the EU's geographical indication protections for wine as they relate to the use of certain terms such as "chateau" which the U.S. argues unfairly limits access of certain U.S. wines to the EU market. In addition, the Trade Rep is unhappy about restricted access to monopoly liquor markets such as Norway where listing requirements make it difficult for producers to gain a foothold in a market with restricted products and limited competition. See: US Slams EU Geographical Indication System.

Winery Land Prices. Recent data from south of the border shows that Napa land prices are the most expensive agricultural land in the U.S. with prices "topping out at $300,000 an acre". See: Napa Ag Lands Remain Most Expensive in U.S.  

Fraud Law Suit. Ongoing law suits in the U.S. related to the allegedly fraudulent sale of counterfeit wine provide interesting reading, particularly if you were a fan of the book "The Billionaire's Vinegar". See: Servant Disses Ex-Boss in Billionaire Wine Fraud Trial and this commentary at the On Reserve Wine Law Blog: William Koch Back in Court for Another Counterfeit Wine Lawsuit.