New York distributors of highly sought after wines produced or imported in minimum quantities may soon be able to breathe a sigh of relief.  The New York State Liquor Authority has issued a proposed advisory that, if approved, would let distributors favor their top accounts or prestigious retailers in their allocation of limited availability wine.  New York state law prohibits wholesalers from discriminating between retailers.  ABC §101-b.  Wholesalers must file the price for the products they sell in New York, and provide their wines to any retailer that expresses an interest in purchasing any of their wines at the posted price:

No licensee shall refuse to sell any brand of liquor or wine to   any licensee authorized to purchase such brand of liquor or  wine from such licensee at the price listed in the schedule of prices … provided the purchaser pays cash therefore….

There is some flexibility for items with limited availability.   ABC §101-b(4-a)(d) states,  “For good  cause  shown  to  the  satisfaction  of  the  authority, permission  may  be  granted  for  the  filing of schedules limiting the  distribution or resale of a brand to retailers.“

The proposed advisory provides additional details on what constitutes a limited availability wine and how a distributor can allocate those wines while still complying with New York ABC laws.  The advisory applies to wines which the manufacturer, importer or wholesaler “has reason to believe market demand exceeds or will soon exceed available inventory” as well as wines for which those entities has price posted for subsequent vintages (i.e., older vintages of wines the distributor previously sold and price posted in New York).  It also applies to wine that the distributor “dos not intend to purchase or cannot purchase further inventory for a period of at least one year,” “seasonal item[s],” discontinued items, and wines from suppliers with whom the supplier has ended its relationship.

If a wine falls into these categories, the manufacturer can notify the NYSLA that those wines are “limited availability,” and describe how they intend to allocate those wines.  The advisory also specifies acceptable means of allocating limited availability wines.  For example, distributors will be able to favor on-premise accounts in allocating limited availability wines; take into account past sales; and also favor retailers identified in “respected third party sources” such as the Michelin Guide, Zagat Guide, or Wine Spectator’s restaurant wine list award.

The NYSLA will consider the proposed advisory on July 17, 2013, and public comments are welcome.   If approved, the revised guidelines will go into effect in September of this year.

For a copy of those guidelines as well as additional information on where to send public comments, please go to:  http://www.sla.ny.gov/proposed-limited-availability-advisory

For more information or assistance on alcohol beverage law / wine law, contact John Trinidad ([email protected]).

This post is made available for general informational purposes only and none of the information provided should be considered to constitute legal advice