Bin Ends: Legal news for the wine and liquor industry

David McGregor, Senior Partner | March 2004

Continuing Spray Drift

A recent decision of the Environment Court in G Bodle v Northland Regional Council A225/203 upheld the provisions in that Region's Plan in relation to agricultural and horticultural operations. This was that the discharge of contaminants to the air from agrichemical application by commercial users or contractors is a permitted activity (i.e. can be conducted as of right) provided that the person applying the agrichemicals has the appropriate qualifications.

The rule also require that the application is undertaken in accordance with the specifications of the label; that the application is in respect of the relevant portions of the New Zealand Standard A409:1995 Agrichemical Users Code of Practice in order that the best practical option is implemented to avoid remedy or mitigating the adverse affect of spray drift beyond the target property; and that records are kept in accordance with the standard and are made available to the Northland Regional Council on request.

This rule, which New Zealand Winegrowers has supported in a number of similar cases, was challenged by a reference (Appeal) that required that "buffer zones" be created around certified organic properties inside which the use of chemical sprays be used only in accordance with the requirements of organic certification standards insofar as the certified organic property is dependant on the environment as much as the certified organic property benefits the environment according to the purposes of the act.

Rigorous support in respect of this relief was advanced by the Safe Food Campaign.

The Environment Court rejected the relief sought but did reconsider the rules about notification and spray plans and has required the parties to effectively mediate this. In doing so however they have more or less indicated strong support for the continuation of the requirement for the promulgation of annual or seasonal spray plans and their availability to appropriate persons.

More Bureaucrats!

1. Winery Premises
   
   Expect more visits and presumably, demands, for fees from local government. With the repeal of the Winemakers Act 1981 at least one territorial local authority proposes to inspect your winery pursuant to the Food Hygiene Regulations 1974 to satisfy itself that your winemaking premises are hygienic!
   
   Check that they have given themselves a power to charge a fee, and if your now defunct Winemakers Licence had an unexpired portion of its term to run, claim a set off against any fees charged for the inspection.
   
   
2. Managers' Certificates
   
   Proposed amendments to the Sale of Liquor Act 1989 will now require you to have attained a "prescribed qualification" in order for your Manager's Certificate to be valid for the renewal of any off- or on-licence. Despite a lifetime of involvement at the cellar door, it's back to school.
   
   
3. Renewal of Licences
   
   The same amendments propose that D.L.A.s will have extra jurisdiction with regard to the conditions of a licence (namely their review) upon renewal. Cause to do so is not prescribed.

Ambulance Chasing (from Richard Cartiere's Wine Market Report)

A group of attorneys seeking to represent 16 million vegetarians and American Hindus is threatening a national class action lawsuit against US-based importers of French wines, claiming a cow's blood derivative is used without disclosure as a fining agent for French wines. Importers have been receiving letters offering to consider settlement of the issue before filing. The settlement overture, required by California law, includes a description of a similar lawsuit brought against McDonalds, which paid $10 million to settle a case over the use of animal fats in its so-called :vegetable oil: French fries. A derivative of cow's blood is used to fine some wines. The process is expensive and used only occasionally in Europe.

More on the Horizon for Labels

A proposal for a uniform "Alcohol Facts" label was submitted in December 2003 by the National Consumers League (NCL), the Center for Science in the Public Interest (CSPI), and others in a petition to the Alcohol and Tobacco Tax and Trade Bureau (TTB). The petition urges the agency to require a new label for alcoholic beverages that would give consumers clear information about alcohol content, serving sizes, calories and ingredients.

Labels would list calories per serving so consumers concerned about excess weight or obesity could put alcoholic beverages in the context of their diet.

The next day Diageo announced its intentions to add content and macro nutritional information to labels. So in addition to everything else we can now expect to know about the calorific, carbohydrate and fat content of a glass of wine. A bit more of the romance of a glass of wine is taken away!

First published in New Zealand Wine Grower, Autumn 2004