Tag Archives: wine law


Penrose Hill v. Mabray: Did wine journalism win a significant legal victory?

Penrose Hill v. MabrayFederal court judge in Penrose Hill vs. Mabray says it’s likely wine bloggers enjoy the same First Amendment protections as traditional journalists

A federal judge has ruled that a winery’s attempt to sue for critical comments on Twitter and in a blog post probably wouldn’t survive a First Amendment challenge. In doing so, this may be one of the first times a judge has said that the same constitutional protections that apply to print journalism also apply to social media.

The case, Penrose Hill v. Mabray, was actually decided on a technicality; U.S. District Judge Donna Ryu ruled that the plaintiff waited too long to bring the lawsuit under California law. But in her ruling, Judge Ryu said that though Penrose Hill and its CEO, Philip James, were free to sue again, she doubted that even an amended suit would withstand constitutional scrutiny as it applies to free speech.

The case dates to 2017, when Paul Mabray used the phrase a “faker, not a maker” in a blog post discussing winery marketing practices. Penrose Hill is is a bulk producer that also runs a wine club, and its wine club appeared in the post (and in a tweet) as an example of wine clubs that promise more than they offer.

Mabray is a long-time wine industry e-commerce expert, and he has been on the blog many times. In fact, I wrote about the “faker, not a maker” post and was more than a little concerned when Penrose Hill filed its lawsuit this year. If Penrose Hill won, would I have to remove the post? Would I be liable for damages as well? Would I still be able to write posts like this about wine clubs? Or this, about Blue Apron wine?

Times v. Sullivan

That’s because free speech protections are well-defined for print and traditional journalism, thanks to the Supreme Court’s landmark Times v. Sullivan decision in 1964. But there is much more uncertainty about what’s protected on the Internet. In fact, a former newspaper colleague of mine was fired a couple of years ago for tweeting about President Trump; my friend’s critical social media post, said a New York court, enjoyed no such First Amendment protection.

So yes, that the judge dismissed the lawsuit is a victory for 21st century wine writing. I can continue to write the kind of criticism that benefits consumers without worrying that a producer will sue me because they don’t want an honest assessment of its product. As Mabray’s lawyer told Wine Industry Insight: “This is a victory for Paul, and not just for him, but for all people who engage in critical commentary over the Internet. … In addition, this decision confirms the broad protection, under the First Amendment, for expressions of opinion.”

But, despite that optimism, this is not a Times v. Sullivan landmark riling. It was decided on a technicality, and Penrose could re-file the suit and another judge could decide that the First Amendment doesn’t apply here. It’s worth noting that Mabray’s blog post has been removed; that never would have happened with a newspaper story.

In fact, for all of the concerns about any potential legal difficulties stemming from my three-tier reverse sting post, the penalty there – if I was even convicted – would be minor compared to losing the right to write wine criticism on the Internet. So let’s hope Penrose Hill v. Mabray goes no further than this, and that the courts continue the trend that started here.

Photo: “Courtroom” by srqpix is licensed under CC BY 2.0

Winebits 635: Beard award semifinalists and some wine legal doings

Beard awardThis week’s wine news: Beard award semifinalists feature drink local, while three-tier wins a court victory and wine clubs lose

Beard award semifinalists: Seven wineries, including four regional producers, are among the semifinalists for the 2020 James Beard Award for outstanding beer, wine, or spirits producer. The three are some of the top Drink Local winemakers in the country: Texas’ Kim McPherson of McPherson Cellars; Vermont’s Deirdre Heekin of La Garagista Farm + Winery; New York’s Nancy Irelan and Mike Schnelle of Red Tail Ridge Winery; and Virginia’s Rutger de Vink, of RdV Vineyards. The Beard Awards are the restaurant business’ version of the Oscars, so this is a big deal. In addition, given the way the final voting often turns out, earning semifinalist honors is the equivalent of winning for someone not on the East Coast or in a major media market. The finalists will be announced March 25.

Score another for three-tier: A Mississippi court has ruled that out-of-state retailers can’t sell wine in that state, in a decision that left a couple of legal scholars scratching their heads. The decision itself isn’t surprising, given the way the three-tier system works to prevent an out of state retailer from doing that. What is odd, wrote the Alcohol Law Review, is that “this unanimous decision reverses the trial court’s decision. … This case served as a reminder of first year law school’s Civil Procedure class and examination of when personal jurisdiction kicks in. The opinion does not really address alcohol laws in depth.” But, as the blog’s liquor law expert has said many times, since when does three-tier have anything to do with alcohol law?

Score one for wine drinkers: The blog has written extensively about problems associated with third-party wine clubs – those not run by wineries. Now, a lawsuit has agreed with us.  Two national wine clubs have settled lawsuits alleging they broke California law by not notifying customers that their memberships would be renewed automatically. Direct Wines and Wine Awesomeness did not admit wrongdoing, but agreed to change their policy and pay $350,000 and $15,000, respectively, in penalties and costs. From now on, each will have tell a customer when their membership is being renewed, and can’t hide the policy in fine print or on an Internet link.

Winebits 473: New Year wine legal affairs edition

wine legal affairsThis week’s wine news: We start 2017 with items from the almost Python-esque world of wine legal affairs

What’s in a name? Regular visitors here know how much the Wine Curmudgeon appreciates lawsuits about wine names, and there is another one – the small producer that makes a label called Six Degrees is suing the big producer that makes a label called 6°. To make the case more interesting, the small producer is family owned and the big producer is owned by members of the family that owns Bronco Wine, one of the biggest wine companies in the world. And there’s a great lawyer’s quote, too, hinting at blackmail. With a spectator sport like this, who needs football?

Only in Michigan: Utah is generally considered to have the most restrictive liquor laws in the country, but Michigan – home to the Granholm direct shipping case – is also a contender. That’s why this news, that the state is relaxing its notorious direct shipping requirements, is notable. The post is difficult to follow unless you practice wine law, but this analogy works: Previously, shipping wine into Michigan was the equivalent of wearing three pairs of socks when most of us only wear one pair. Now, it’s the equivalent of wearing two pairs of socks. Still unnecessary, but not as awkward.

Yes, but what about Utah? Not to be outdone by Michigan, a Utah legislator has proposed lowering the state’s legal alcohol limit to .05%, the lowest in the country – about the same as couple of of glasses of wine with dinner and which would make drunk drivers out of every social drinker in the state. The idea is not new, and it’s just as noxious now as it was then. As this well-reported story from the Las Angeles Times notes, drunk driving deaths in the U.S. have fallen by one-third over the past three decades. As Mothers Against Drunk Driving pointed out a couple of years ago, social drinkers aren’t the problem. It’s the repeat offender who drives drunk, even after arrests and license suspensions.

Winebits 329: Legal affairs edition

Winebits 329: Legal affairs editionBecause the Wine Curmudgeon is always amused by the legal side of the wine business:

? Blame it on Utah: The Wine Curmudgeon has first-hand experience with Utah’s liquor laws, thanks to a story I wrote about the 2002 Winter Olympics in Salt Lake City. But not even I was ready for this excellent piece of reporting by Nancy Lofholm in The Denver Post. How about eight different liquor licenses? Or that some establishments have to have a barrier between customers and the bartender, and that others don’t — even if they have the same license? But don’t worry too much. Says one Utah tourism official: “We are not the only state with peculiar liquor laws.”

? Scores don’t matter: Or, did a New York judge tell a wine drinker that a high score can’t be the basis for suing about wine quality? There are many ways to interpret the decision, in which a Manhattan judge dismissed a lawsuit (requires free registration) in which a consumer wanted a refund from a wine store because he didn’t like the six bottles of 91-point wine he bought. The judge wrote that wine taste is subjective, and so can’t be the basis for a lawsuit. I know the wine in question, a decent enough bottle of Rioja, but one that’s probably not worth the $12.99 the consumer paid. Damn those scores anyway.

? Questioning three-tier? Or so says this post from the Libation Law blog, analyzing a New Jersey court decision that said “New Jersey’s liquor control laws and regulations must be administered in the light of changing conditions.” Which, of course, is what those of us who want to reform the three-tier system have been saying for years: That a system put in place at the end of Prohibition to keep the mob out of liquor has outlived its reason for being. The decision, which dealt with distributors and how they paid commission, is esoteric, but Ashley Brandt at Libation is optimistic that it “strengthens the argument that a vigilant regulatory system can uncover and prohibit the practices that people claim the three-tiered system was meant to forestall.” The Wine Curmudgeon, with his vast legal experience (a semester of First Amendment law in college) isn’t quite so sure, but who am I to ruin a good mood?

Google AdSense, wine blogs, and Joe Camel

Google AdSense, wine blogs, and Joe Camel

Google AdSense, wine blogs, and Joe Camel

“Hey, kids. Why don’t you try some wine with your smokes?”

Most wine blogs can’t participate in Google’s AdSense network, perhaps the leading on-line ad service. That’s because, as I found out when I applied, we violate its terms of service: “We did not approve your application for the reasons listed below. Issues: Drugs, drug paraphernalia, alcohol, beer or tobacco. … Please remove all drug-related content from your site, then resubmit your application.”

That we’re doing nothing illegal and that we don’t have any drug-related content to remove seems like just another of those wonderful, Google-esque ways the search giant does business: Buying companies to close them, discontinuing popular services, or agreeing with the Chinese government that Internet censorship isn’t such a bad thing.

But Google’s decision to ban wine blogs from AdSense goes deeper than that, speaking to the contradictions inherent in wine and alcohol 80 years after Prohibition, thanks to the NeoDrys, fear of underage drinking, and the three-tier system. Google doesn’t object to wine, as near as I can tell. It just doesn’t want to be responsible for someone buying it who might break the law, because that could lead to nasty publicity, lawsuits, and the besmirching of its good name. More, after the jump:

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The Kentucky grocery store court decision

Which made interesting reading, even for those of us who haven ?t had a law class since the late 1970s. Federal judge John G. Heyburn II ruled that the that Kentucky law that prohibited grocery stores from selling liquor but that allowed drug stores to do so was unconstitutional. Heyburn wrote that it seemed kind of silly that ?a grocery-selling drugstore like Walgreens may sell wine and liquor, but a pharmaceutical-selling grocery store like Kroger cannot. ?

That ?s the good news for those who want to see wine sold in grocery stores in the 19 or so states where it ?s illegal. The bad news, as my pal and attorney Lou Bright (one of the top liquor lawyers in the country) told me, is that the decision will have almost no effect anywhere but in Kentucky, given how unique the state ?s law is.

In addition, Lou said, the distinction between which stores could sell liquor and which couldn ?t ?was drawn on a factor that didn ?t have anything to do with the sale of alcoholic beverages or any policy interest related to them. ? So the judge ?s decision was reasonably straightforward.

How often does that happen in liquor law?

Wine names, lawsuits, and being silly

wine name lawsuitsLast week’s post about the Cristal lawsuit that forced Cristalino to change its label because of so-called confusion over the latter’s name was hugely popular, and the Wine Curmudgeon is always happy to give his visitors more of what they want. So I called my old pal, the well-known trademark and trade dress attorney, A.M.B. Chaser, to ask her what else might be on the wine name litigation front.

“Frankly, Jeff,” she said, “I’m jealous of the attorneys who worked the Cristalino case for Cristal. Talk about genius. To say nothing of the fees they generated from something as simple as that.”

After the jump, Chaser’s analysis of potential lawsuits:

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