How to comply with new virtual tasting samples guidance
For wineries, breweries, and distilleries, tastings are an incredibly important way to generate sales and build loyalty with buyers. With most of the tasting rooms around the country closed because of the COVID-19 crisis, producers are turning to virtual tastings to replicate the experience of the physical tasting room. These typically come in the form of a recorded or live online guided tour of one or more products.
Recently, the California Department of Alcoholic Beverage Control (ABC), in its Third Notice of Regulatory Relief, added a new section to provide guidance on how to conduct virtual wine tastings. Wine Institute has listed requirements provided by the Alcohol and Tobacco Tax and Trade Bureau (TTB) on a tasting samples resource page. The Wine Institute page also tracks the list of states that have approved the practice of shipping samples for virtual tastings. We compiled a summary of best practices for complying with the guidance from TTB, California ABC, and state regulatory agencies.
- Charge the customer. According to the California ABC, tasting samples can be included free of charge, "provided they are part of a sale of wine or other products." Tasting samples, therefore, should either come with a price if shipped without other products or come bundled (included) with other products sold.
- Only use manufacturer-sealed containers. This is challenging for many producers currently because they don't have access yet to a bottling process for tiny bottles. However, tasting samples can technically be of any size that falls under TTB's definition of "standards of fill."
- Use a valid COLA. Any samples shipped must fall under a valid Certificate of Label Approval (COLA). If a new bottle size is used for the tasting samples such as a 50mL or 100mL standard of fill, producers can either file for a new COLA or change the net contents on an existing COLA and use an allowable revision. Note: A challenge for 50mL and 100mL bottles is TTB's minimum font size of 1mm. Check TTB's wine labeling guidance page for more information.
- Pay all taxes. Sending tasting samples under direct shipping licenses will mean that TTB federal excise tax (FET) is due, as well as any taxes required by the destination state, including sales and use, excise, and markup taxes.
- Follow direct shipping rules. Any tasting samples sent via direct shipment are subject to the laws of the destination state, including license requirements, volume limits, product registration, and age verification. Wineries can consult the Wine Compliance Rules portal by Wine Institute and Avalara for requirements.
- Make sure the state has authorized tasting samples. Check with Wine Institute's resource page to see which states have authorized the direct shipment of tasting samples. As of May 4, the vast majority of states that allow direct shipping have approved tasting samples, with only Arkansas (onsite only law), Kentucky (will allow once new law takes effect), Louisiana (minimum container size restriction), Maine (minimum container size), and Rhode Island (onsite only) explicitly prohibiting the practice.
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