Berger: Arcane laws still plague wine shipment

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A friend was having a birthday. I wanted to send him a bottle of wine.

But he lives in another state and, as a direct result of where he and I live, I was told it was illegal to send him a bottle of wine to celebrate.

The person who told me this was the clerk at a large U.S.-based shipping company who had asked what was in the box I was planning to ship.

This is one of the myriad problems with many of our wine regulations, which emanate from the badly written 21st Amendment to the Constitution, the one that ended Prohibition.

So eager was Congress to do away with the “Great Experiment” that led to 13 years when it was illegal to make, sell, or consume alcoholic beverages that it hastily created a horrible law that remains essentially unchanged since 1933.

And then the states were allowed to write whatever arcane regulations they saw fit to enact, leading us to 51 separate sets of regulations all written by different people, many of whom knew nothing about wine or wine commerce.

What we are left with is a confusing series of regulations that make for Excedrin Headache No. 1 for anyone who deals in wine.

No one I know in the wine business — neither wineries, retailers, restaurants, wholesalers, nor consumers — likes the fact that so much is left to interpretation with no specifics that people can readily understand.

And among the worst tiers of vagueness is the one that applies to retail shops, where we buy most of our wines.

Can a Texas consumer order a bottle of wine from a New York retailer and have the wine shipped to Texas? More about this later.

First, back to the clerk at the shipping company: Why is it illegal for me to ship a bottle of wine to my friend?

I paid for it at a local store, where I also paid the sales tax on it. At that point it is, for all legal purposes, no longer an alcoholic beverage. It is a personal possession, one that I can do with what I please as long as I don’t sell it.

By shipping it to, say, Massachusetts, I am giving this personal possession to another person as a gift. That cannot be seen as illegal.

No law I know of holds the shipping company responsible for knowing what’s inside the packages they deliver. Yes, they may ask if I’m shipping something explosive or caustic, but in about 99.9% of all such cases, the shipping company does not ask those shipping the item(s) to verify that their statements are accurate.

And even though many states do not permit alcoholic beverages to be received by recipients, how does each recipient know what’s in a box that’s unsolicited?

So the person doing the shipping, the shipping company, and the recipient have broken no laws. Since the California sales tax has already been paid, Massachusetts cannot ask that another tax be paid. The item in question, a bottle of wine, wasn’t sold in its state; it was sold in California, where the tax was paid.

So can a retailer ship wine to a buyer in another state?

Some retailers say they can, even if the recipient state has a law that prohibits it. Their argument is that a retailer cannot be held liable for violating the laws of another state.

Empire Wine in Albany, N.Y., has been the target of the New York State Liquor Authority (SLA) over violations it says Empire made in shipping wine to other states that have such laws. The SLA said Empire was guilty of violating its (some say vague) “improper conduct” regulations.

Last week, the New York legislature sent to Gov. Andrew Cuomo a bill that would prevent Empire from being persecuted for interstate shipping. Cuomo has not indicated whether he would sign or veto the bill.

I called Tom Wark, who works with the National Association of Wine Retailers, a group of entities that want to ship across state lines without fear of prosecution.

“I think the New York case is a one-off case,” Wark stated. He said it was more a case of the SLA commissioner “who over-reached, almost as if he had a vendetta against Empire wines.”

He noted that the law was a tiny step toward clarifying the way retailers should be dealt with and applies to New York only.

As for my bottle going to my friend? I just told the clerk that the bottle contained processed fruit. The box was shipped.

Sonoma County resident Dan Berger publishes “Vintage Experiences,” a weekly wine newsletter. Write to him at winenut@gmail.com.

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