Author: MarkH

A revised Public Health Order was posted this morning (effective yesterday) that fixes the language in the earlier order that prevented customers from standing in a tasting room. The new Order now clearly states that licencees who are manufacturers are not covered by the requirement that all customers must have assigned seats. As a result, customers may stand at a tasting bar in a winery or other manufacturer so long as they comply with the other distancing rules. This is obviously a welcome clarification for wineries during the busy tourist season.

A press release from Global Affairs Canada issued today (Summary of Understanding Between Australia and Canada on Wine) indicates that the federal excise tax exemption for Canadian wine will be eliminated within 2 years. This action comes in partial settlement of a trade dispute launched by Australia against Canada at the WTO which alleged that various Canadian policies and practices were discriminatory against Australian wine and violated GATT rules. 

The practical result of this will be that all Canadian wine (including BC wine) will eventually become subject to federal excise tax (currently levied at a rate of 66.5 cents per litre or just under 50 cents per 750 ml bottle). Prior to this settlement, 100% Canadian wines have been exempt from this tax. The elimination of the tax exemption can reasonably be expected to increase the price of Canadian wines in the marketplace for the end-consumer once it is implemented (i.e. within 2 years).

The progress of this WTO dispute DS537 can be tracked here: Canada – Measures Governing the Sale of Wine. As can be seen here, the WTO Panel is scheduled to issue its Final Report on the dispute in the middle of August. However, this settlement will resolve part of the complaint. It should be noted that the settlement states that it does not \”alter Australia\’s claims with respect to other measures covered by DS537\” (i.e. the other matters covered by the dispute). 

In addition, and as a related part of the settlement, it appears that Nova Scotia and Ontario have also agreed to change certain preferential provincial practices over the next few years such that Australian and Canadian wines will eventually receive similar tax and distribution treatment. Nova Scotia has agreed to eliminate its preferential liquor markup policies for local wines. Ontario has agreed to eliminate preferential rules in both its grocery channel and taxation treatment of Australian wine. Media coverage from Australia also discusses the settlement: Winemakers Cheer Wins Over Canada\’s Trade Barriers.

A revised BC Public Health Order was posted late yesterday which applies to all licensed premises that serve liquor (and which is effective yesterday, July 23 2020). While the bulk of the order is similar to the previous one, it does make some significant changes which may affect certain winery operations:

• Updated August 1, 2020. This part has been revised effective July 31st. Manufacturer licensees are now exempt from the requirement that all customers must be seated. Updated July 28, 2020. Paragraphs 3 and 10 of the Health Order state that all patrons must have a seat and that following any service to a patron at a manufacturer tasting bar, the patron must return \”directly\” to an assigned seat. As such, the text of the Order does not permit patrons to stand at a tasting bar to consume their samples/drinks. Rather, a plain reading of the sections says that they can\’t do so (see paragraph 3). While I have been told that there may have been an \”intention\” to allow patrons to stand at a manufacturer tasting bar so long as physical distancing is maintained, the Health Order does not allow this. Unless the Health Order is modified, it is my view that manufacturers should require all patrons to have a seat (a stool would be ok too) as Health Officers or Liquor Inspectors may expect all patrons to be seated based on the text of the Order. The rules apply regardless of tasting room setup (i.e. whether inside or outside). 
• Group size is still limited to 6 persons. If larger groups arrive, they must be seated separately with mandated physical distancing. Tables cannot be consolidated. 
• There must be sufficient staff to monitor and enforce the physical distancing and seating rules. 
• No singing or dancing.
• There are detailed rules regarding the holding of events including the previous maximum of 50 people. Events can only be held between noon and 11 pm. Maximum of two events per day.
• If live music is part of an event, there must be a physical barrier to separate performers from the audience and a distance of at least 3 m.

Full order is here: Order of the Public Health Officer: Food Service Establishments, Liquor Services & Events

Today is the first day that restaurants, bars and hotels in British Columbia will be able to purchase alcohol at normal wholesale prices. This is an historic change that has been sought by the hospitality industry for decades. It will finally place hospitality customers in the province on a level playing field with retail customers in terms of alcohol pricing (the 2015 changes to the wholesale pricing system left out hospitality customers). The new system will provide critical financial assistance to the restaurant/bar/hotel sector at a time when such assistance is urgently needed due to the devastating economic effects of the pandemic. 

More discussion on the economic implications of the change for manufacturers is here: Implications of BC’s New Hospitality Pricing System for Wineries. This change was part of the recommendations of the Business Technical Advisory Panel, and was implemented due to the hard work of Minister David Eby, the LDB, LCRB and the staff in the Minister\’s office. Thanks are due to all of them.

Ontario\’s recent delay of DTC reform (Ontario Shuts Down DTC Reform) has illuminated how poorly Canada is doing in respect of removing the interprovincial trade barriers that prevent the shipment of wine to consumers across provincial borders. While the federal government removed its restrictions 8 years ago (in 2012), there are only 3 provinces that are currently open for direct to consumer (DTC) shipments of wine from another province. Those provinces are BC, Manitoba and Nova Scotia (kudos to all of them). Unfortunately, they collectively represent a paltry 19% of the Canadian population (see Wine Growers Canada summary of the situation). As a result, 81% of Canadians live in provinces that still do not allow them to order a bottle of wine (or other alcohol) from another region in the same country.

By global standards, this is astounding and ridiculous. It remains illegal for a consumer in one province to order a bottle of wine from a Canadian winery in a different province. This is analogous to telling a Parisian that it is illegal for them to order wine from Bordeaux … or telling a Roman that it is illegal for them to order wine from Tuscany. In fact, in Europe, it is legal for a customer to order wine from anywhere within the Schengen zone so a Parisian can order wine from a winery in Spain, Italy or Germany without issue (if they want to). While these countries do not have the Post-Prohibition regulatory structures and monopoly liquor boards that Canadians face, the pace of reform on this issue in Canada is embarrassingly slow. The U.S. faced similar problems when its Supreme Court struck down such protectionist policies in 1986 (in the seminal case of Granholm v. Heald). Reform efforts in the U.S. progressed rapidly following the case and have now opened up all but 4 U.S. states … so 96% of U.S. wine consumers now live in states where DTC is permitted (the hold-outs are Utah, Delaware, Alabama and Mississippi).

As a result, Canada now holds the unique and bizarre distinction of being one of the only places in the world where its wine consumers are actively discriminated against by many of the provincial governments that are supposedly representing them. This situation is long past its \”best before\” date. The governments of the other 7 provinces need to move into the modern world and fix this problem once and for all. One would think that in the midst of a pandemic, the politicians would do something to help Canadian business. Here\’s the sad comparative report card:

I note that in the Canadian provinces that are open, there have been no significant negative effects from DTC. None of those provinces has experienced any significant drop in provincial liquor revenue. There is simply no valid policy reason why this situation should continue. Fingers crossed that the government of Ontario will come to its senses on this issue and act sooner than July 2021 (the date that they postponed the reforms until).

In a disappointing move for the Canadian wine industry, the Ontario government has delayed reform of its restrictive DTC policies for an entire year, to July 1st 2021. Previously, it had implemented regulatory changes which would have had the effect of removing the LCBO\’s prohibition over DTC wine shipments from other provinces on July 1st, 2020. There was considerable hope within the wine industry that the Ontario government would make this change in order to provide vital economic assistance to the wine industry during the pandemic and to finally give Ontario consumers access to wine from other provinces. Regrettably, this opportunity has been lost as the Ontario government passed a regulation yesterday which delays the removal of the restriction until July 1st of next year. This is a very unfortunate development as it misses a chance to remove an anachronistic interprovincial trade barrier on Canada\’s birthday. I note that the opening up of DTC opportunities in other provinces (BC, MB and NS all now allow it) has not produced any discernible negative effects and no loss of provincial revenue. I hope that Ontario will re-think this mistake, well before next year. 

This article is intended to explain the recent change to BC’s alcohol pricing system for hospitality customers and to outline the implications for BC wineries. Particularly, it covers the financial consequences for stakeholders. 

What Changed?

Prior to July 20, 2020 (and for decades prior to this), it was an LDB-mandated requirement that BC’s hospitality industry (restaurants/bars/hotels) purchase all alcohol for their businesses at either the full LDB retail price (for products listed in BCLS government stores) or at the hospitality price (for products not listed in BCLS government stores). The latter price was a price set by the LDB which approximated a retail price since it added a “hospitality margin” to the product’s registered wholesale price (i.e. the one offered to retailers). The hospitality margin varied from product to product but is thought by industry to average about 20%. The only exceptions to the above were: 1) land-based wineries were permitted to set their own hospitality price (i.e. they could sell to hospitality customers at their registered wholesale price if they chose to do so), and 2) hospitality licensees did not pay PST on their purchases since that tax is levied on the end-consumer during the final retail purchase.

The new system means that from July 20, 2020 through March 2021, hospitality licensees will be permitted to purchase alcohol at the same registered wholesale price that is offered to all retailers. In other words, restaurants/bars/hotels will now be treated as full-fledged wholesale customers of alcohol suppliers. This will create a normal wholesale pricing system, similar to those that exist nearly everywhere else in the world, including our neighboring jurisdictions of Alberta and Washington state.  

What Happens In Other Places?

The previous BC pricing system was very unusual by global standards. In nearly all other jurisdictions (including all West Coast wine producing jurisdictions), wholesale customers include both retailers and restaurants/bars/hotels, just as they do for other non-alcohol products such as food supplies. This makes sense because these types of businesses buy large quantities of wine from their suppliers and should not be treated the same as a retail customer who comes in and buys a single bottle or case. If a wholesale price is offered to a retailer, there is no fundamental business reason why that price should not also be offered to a restaurant which may well buy significantly more wine than the retailer.

Indeed, wineries often already provide discounts to their best retail customers through wine clubs or volume discounts. If it makes sense to provide 10% or 20% off to a retail customer who buys 1 or 2 cases of wine per year, surely it makes sense to offer equivalent or greater discounts to a restaurant that buys much more. These are normal business practices throughout the global wine industry.

Financial Implications   

The financial implications of this are:

• Restaurants/bars/hotels will pay less for their alcohol purchases since they will now be placed on an equal footing with retailers. It is estimated by industry that they will save about 20% overall on their alcohol purchases.
• For products sold through the LDB distribution system, the LDB will make less money since they will no longer collect the retail margin or hospitality margin on sales to hospitality licensees.
• For products sold through direct delivery, suppliers will make less money if they were selling those products to the hospitality licensees at the full retail price or at a hospitality price that was greater than the wholesale price. As noted above, there would be no change for land-based wineries that had previously chosen to sell to hospitality customers at their normal wholesale price.

In respect of the above, it should be noted that the new model was specifically introduced as a response to the current COVID emergency. Hospitality licensees were ordered to close (or to restrict their business to take-out) for the past few months by the Provincial Health Officer. Although they are now being permitted to re-open with restrictions, their financial situation is grim due to accumulated losses during the closures and significantly reduced business during the re-opening period. Restaurants Canada is predicting that 50% of independent restaurants may declare bankruptcy within 3 months if they do not receive help. The situation for bars is likely even worse.

The new alcohol pricing model is intended to provide the sector with some of the vital financial assistance that they need to survive. A choice to do nothing would be a choice to let large segments of the hospitality sector collapse. Unfortunately, it is a dire situation: if the sector does not receive help, much of it will simply not survive and vital distribution channels for wine will be significantly reduced or, in some cases, disappear entirely. The Government’s decision to forego some LDB revenue to help the hospitality sector should be commended. This is a policy change that is directly aimed at helping businesses survive and preserve jobs.  

It is correct that some suppliers will also forego revenue as a result of the change (although the impact will vary depending upon the previous pricing as noted above). Wineries that were previously selling to hospitality licensees at full retail price (or at a hospitality price that was greater than the registered wholesale price) will make less money under the new system. However, this change is necessary to save the hospitality distribution channel from grave short-term damage and to preserve it so that wineries can keep selling wine in this channel in the long term. In addition, and as discussed above, the new model actually creates a normal wholesale pricing system which is the global standard for the wine business. In the long term, this is where the province needs to go … and how the BC wine industry needs to operate in order to thrive.

Those wineries that had chosen to previously sell into the channel at their registered wholesale price will not be affected (i.e. they were already effectively operating under the new model). However, other wineries may need to re-calibrate their wholesale price strategy or distribution channel mix in order to adapt. If a winery can absorb a loss in revenue in order to support the hospitality distribution channel, then that would constitute a valuable investment in the continued viability of the channel for that winery. If they cannot, then an adjustment in wholesale price across the board or increased emphasis on the DTC channel could be considered and/or may be necessary.

In any such calculation, I would urge wineries to think long-term. The BC wine industry without the support of its vibrant restaurant, bar and hotel partners would be greatly diminished. Please reach out to your hospitality customers. They have historically been your partners and some of your best marketers and ambassadors … but right now, they need your help and support!   

Final Comment on Process (& Full Disclosure)

As the former Chair of the BTAP Panel (which recommended the implementation of a change to hospitality pricing in its report), I note that this change was part of a balanced set of recommendations that has had consensus support for the past 2 years from the liquor industry, including representatives from BC’s winery sector, craft distillers and breweries. The Panel continues to work on its original recommendations and upon new issues. While change is rarely free from turbulence, I am proud of my involvement in this work … and strongly believe that this is the right policy change at this time. Again, thanks to Minister David Eby, his ministerial staff, the LDB and the LCRB for making this happen.

The BC Government announced a ground-breaking and positive change for the hospitality industry today by moving to a normal wholesale pricing model for alcohol sales to restaurants/bars/hotels (i.e. the hospitality industry). This change has been sought in BC for decades and was a recommendation of the Business Technical Advisory Panel Report. It will allow the industry to purchase alcohol at normal wholesale prices rather than full retail prices (as they have been required to do in the past). This change (from July 2020 at least until early 2021) will dramatically reduce the cost of alcohol purchases (likely about a 20% cost savings overall) for hospitality industry customers and place them on a level playing field with their competitors in other jurisdictions. The change will be incredibly important for the industry as it seeks to recover from the COVID shutdowns and to rebuild their businesses. Purchases under the new model become effective at the end of July (announced date is July 20th).

Major thanks to Minister David Eby, his ministerial staff, and all of those at the LCRB and LDB who worked incredibly hard to make this change happen. Kudos as well to the industry stakeholder members of the Business Technical Advisory Panel who have invested much time and energy on this. This is truly a landmark government policy shift which will provide vital economic help to the hospitality industry at a time of dire need.

Press Release and Details are here: Province Expands Measures to Support Restaurant, Tourism Industries

Of note to wineries and other manufacturers: direct delivery sales to hospitality customers should switch to your normal wholesale price (i.e. same price as for private retailers) as of the date that the new model becomes effective (land-based wineries may have been doing this earlier). This change will provide much-needed economic help to the hospitality sector (i.e. some of the industry\’s best customers).

BC\’s Provincial Health Officer, Dr. Bonnie Henry, has amended her previous order that was applicable to licensed premises. The new rules remove the previous limit of 50% maximum occupancy. The revised rules allow opening at any capacity under which the physical distancing rules can be maintained. In addition, the new order applies to all licensed premises so all licensees may re-open regardless of license type as long as they can follow the rules.

The full order with the new rules is here: Provincial Health Order for Liquor Licensees

The BC Government announced this morning an expedited process to fast-track approval for expanded service areas for manufacturers (including winery tasting rooms/lounges), food-primary licensees and liquor-primary licensees (those who are permitted to reopen). This process is designed to allow licensees to expand their current \”red-lined\” service areas in order to accommodate public health orders and protocols such as social-distancing requirements. 

The press release is here: Patio, Service Area Expansions Support Re-opening. Online applications can be made here: Covid Temporary Extension Application