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NEW YORK’S FAMILY MEDICAL LEAVE ACT

February 12th, 2018

Effective January 1, 2018, almost all non-government employees in New York State are eligible for paid family leave. The leave is paid for through employee payroll contributions and are provided by the employer’s existing disability benefits insurance policy.

Employees with a regular workweek of 20 or more hours per week are eligible after 26 weeks of employment. Those employees with a regular work schedule of less than 20 hours are eligible after 175 days worked. Neither citizenship, nor immigration status have an impact on a worker’s eligibility for paid family leave.

A parent is eligible for paid family leave to bond with a newborn child during the first twelve months following birth, adoption or a foster care arrangement. Spouses with different employers can both take paid family leave at the same time. However, if both spouses work for the same employer, the employer can deny leave to one of them if they ask for the leave, to bond with the child, at the same time.

An employee can also obtain paid family leave to care for an eligible family member with a serious health condition. Family members include a spouse, domestic partner, child, parent, in-law, grandparent or grandchild.

Employers with one or more employees are required to obtain paid family leave insurance. This insurance is generally added to the employer’s existing disability policy.  Current employee handbooks should be updated to describe these new employee rights.   In addition, employers, who have not yet done so, should update their payroll deduction process and begin to collect the employee’s contribution to pay for the new benefits. The best practice is to notify the employee before beginning to take the new payroll deductions. In 2018, the employer should deduct 0.126% of the employee’s weekly wage. There is a cap so not deduction is taken against any portion of the weekly wage  in excess of  $1,305.92.

Where the event which will give rise to a claim for paid family leave is foreseeable, the employee is supposed to notify her employer thirty days prior to taking leave. The request is made with a form issued by the employers insurance company. The employee will also be required to provide the insurance carrier with documents supporting her qualification for leave.  The type of proof will vary depending on the reason for the leave. For instance, in the case of a newborn child, the insurance company will require a birth certificate.

A qualified employee will be entitled to half of her average weekly wage up to a maximum of $652.96.

 

Employers who have not done so, should contact their insurance brokers, obtain the necessary insurance and begin deducting the employees contribution from their employees’ pay.

 

THEY ARE BACK

 

For years, the TTB has been underfunded and has receded from the front lines in the fight against violations of the trade practice rules applicable to manufacturers, suppliers and wholesalers.  However, in 2017, the TTB returned to the front lines. Congress provided $5 million in new funding to the TTB for fiscal years 2017 and 2018 for “the cost of programs to enforce trade practice violation of the Federal Alcohol Administration Act.”  We can expect to see more TTB investigations into  tied house violations, commercial bribery and schemes to pay retailers to carry the supplier or wholesaler’s products.

 

IT TAKES LONGER TO BE GET OLDER

XO is the designation for “Extra Old” cognac. The Bureau National Interprofessionnel du Cognac (“BNIC”) which regulates cognac has increased the minimum age to qualify for an XO label from six years to a minimum of ten years.  BNIC will allow the XO designation on beverages aged six, seven, eight and nine years that are packaged before March 31, 2018 to be sold until March 31, 2019.






THE RENAISSANCE OF FEDERAL UNFAIR TRADE PRACTICES – CURRENT ISSUES AND STRATEGIES (Excerpt)

February 12th, 2018

Source: http://www.beveragelaw.com

John Hinman

By: Robert Tobiassen, Compliance Consultant and Former Chief Counsel (TTB)

January 29, 2018

 

Introduction by John Hinman, Senior Partner, Hinman & Carmichael LLP

 

Rob Tobiassen has prosecuted, and advised on, hundreds of alcoholic beverage industry trade practice cases since 1978 when he first joined the Bureau of Alcohol Tobacco and Firearms. Rob rose through the ranks at the BATF (and then the TTB) to Chief Counsel before retiring in 2012. Rob is now providing his significant expertise to those of us engaged in advising our clients how to comply with the trade practice laws, and defending cases when circumstances dictate. This article is a primer on TTB Trade Practice enforcement principles and policies.  Rob and I will be on a panel discussing trade enforcement issues at the upcoming NABCA Legal Symposium in Arlington VA on March 18-20, 2018.

 

The TTB has Substantially Picked up the Pace of Unfair Trade Practice Enforcement-and Pay to Play is at the top of the Agenda

 

TTB is making its presence known in the unfair trade practice arena.  In July 2017, it announced a joint investigation by TTB and Florida State Authorities in the Miami area and then in September it followed with a joint investigation by TTB and Illinois State Authorities in Chicago, the Quad Cities, and Peoria.  Both press releases from TTB emphasize these investigations are focusing on “pay to play” schemes.  According to the press releases, “Pay to play,” also known as “slotting fees,” is an unlawful trade practice that hurts law-abiding industry members and limits consumer choice.[1]

 

The TTB Now has the Money to Investigate, and has reorganized to use the new budget cost effectively

 

Congress gave TTB $5 million of specific funding for fiscal years 2017 and 2018 for “the costs of programs to enforce trade practice violations of the Federal Alcohol Administration Act.”  This appropriation reflected an effort by many industry groups to ensure that TTB has adequate resources to enforce the unfair trade practice provisions of the Federal Alcohol Administration Act (FAA Act), Title 27, United States Code, Section 205(a) through (d).  Trade practice investigations are extremely resource intensive.  They are conducted by investigators and auditors who must obtain evidence through extensive field investigations involving interviews and analyses of business records, and significant attorney support from the Office of the Chief Counsel.

 

To position itself to conduct these investigations, TTB has reorganized the Trade Investigations Division (TID), Office of Field Operations.  Since the TTB’s inception in 2003, the Trade Investigations Division has been charged with enforcing the unfair trade practice provisions.[2]  TID has six districts around the country.[3]  The Market Compliance Office (MCO), Office of Headquarters Operations was moved to TID and monitors trade practice matters.  MCO has an Advertising and Trade Practices Program Manager, Lisa Gesser, who is available to answer your trade practices questions at  TradePractices@ttb.gov.  A new Office of Special Operations was established in TID.  It is charged with initiating, conducting, and overseeing trade practice investigations.  Staffing of that office includes nine Special Operations Investigators (SOI) and a supervisor.  The SOIs are positioned around the country.  TID investigators from the field district offices will be assigned to assist in investigations.  Under this reorganization both monitoring and enforcement is centralized in one program division.

 

Looking back at what TTB has done in the past several years in enforcement of unfair trade practices provides a guidepost to the current and future investigations.  Essentially, TTB has focused on two areas:  the “slotting fee” payments for product placement and consignment sales for malt beverages (beer) in the context of “freshness dating” returns.  An examination of the statutory requirements for a trade practice investigation sheds light on why TTB may be focusing on these investigations.

 

The reason for the appropriation and the reorganization is because the industry asked for the trade practice laws to be enforced. A permissive climate where enforcement is hit or miss encourages corrupt activity, and it is the TTB’s mission to root out corruption wherever it can.

 

Federal Unfair Trade Practices Under the FAA Act – What are they and how is a case made?

 

There are four unfair trade practices:

 

Exclusive Outlet (Section 205(a))

Tied-house (Section 205(b)) with seven specific types of means to induce.

Commercial Bribery (Section 205(c))

Consignment Sales (Section 205(d))

“Pay to play” schemes can fit under the first three practices.  Here is how a violation is proven:

 

There are three statutory elements for a violation.

 

http://www.beveragelaw.com/booze-rules/2018/1/29/the-renaissance-of-federal-unfair-trade-practices-current-issues-and-strategies

 






XO Cognac classification increases to 10 years

February 12th, 2018

 

Source: The Spirits Business

by Amy Hopkins

12th January, 2018

 

All XO Cognac must be aged for a minimum of 10 years, as opposed to six, under new industry regulations, which will come into force in April.

 

The Cognac industry has increased its XO age classification in order to “extend the quality positioning” of the category.

 

Trade body the Bureau National Interprofessionnel du Cognac (BNIC) also said the change “aims to align the regulation and the market reality”, since many XO blends on the market are made with eaux-de-vies exceeding 10 years of age.

 

The BNIC first announced the amended law in 2011, but is implementing the change this year in order to give producers longer to mature their stocks.

 

However, the BNIC is allowing XO Cognacs aged for six, seven, eight and nine years, and packaged by 31 March 2018, to be sold as XO until 31 March 2019.

 

Brands that want to use this lead-time must send a stock declaration form to the BNIC outlining the pre-packaged XO eaux-de-vie stocks concerned by 1 March 2018.

 

Despite being hit by China’s long-running austerity campaign in recent years, older expressions of Cognac continue to rebound in terms of export sales – recording 24.2% growth in 2016/17.

 

Towards the end of last year, the BNIC unveiled a new visual identity for the Cognac appellation, which is rolling our across all communication for the organization.






ANNOUNCEMENT

February 12th, 2018

 

We are happy to announce that Arielle J. Albert and Barbara J. Kwon have been made Partners of the firm Danow, McMullan and Panoff, P.C.

 

CHANGES TO FEDERAL ALCOHOLIC BEVERAGE TAXES

 

On December 22, 2017, President Donald J. Trump signed into law the Tax Cuts and Jobs Act of 2017, which makes changes to the Internal Revenue Code of 1986, including provisions related to beverage alcohol industry.  All changes were effective January 1, 2018.  The passage of the act included the Craft Beverage Modernization and tax Reform Act which also took effect on January 1, 2018 but incorporated a sunset provision so that all taxes will revert back to the 2017 levels on January 1st, 2020.  The benefits of the new law vary depending upon the type of beverage alcohol produced.

 

DISTILLED SPIRITS

In the case of distilled spirts removed during the calendar years 2018 and 2019 for consumption and sale the applicable tax is $2.70 per proof gallon on the first 100,000 proof gallons and $13.34 per proof gallon on the next 22,130,000 proof gallons. The lower tax applies to all beverages distilled in the United States.  Foreign manufactures can also elect to take advantage of the reduced tax rate on distilled spirits. The Secretary of the United State Department of Treasury is charged with developing procedures for the foreign distillers to assign the reduced rate to their importers in such a way as to keep track of which importer gets the first 100,000 proof gallons and which get the next 22,130,000.  Unless the rate reduction is extended, commencing January 1st, 2020 the tax on distilled spirits will return to $13.50 per proof gallon.  In addition, it appears that distilled spirits transferred in bond during the calendar years 2018 and 2019 can take advantage of the special bulk transfer rules in Section 5212 without regard to weather the distilled spirits are sufficient in volume to be classified as bulk distilled spirits.

 

WINE

Still wine containing not more than 14% alcohol by volume removed prior to December 31, 2017 was taxed at $1.07 per wine gallon.  For wine removed after December 31, 2017 and before January 1st, 2020 the $1.07 rate will apply to wine containing not more than 16% alcohol by volume.  Wine with more than 16% alcohol by volume will be taxed at $1.57 per wine gallon. That is the same rate that applied to wine above 14% before January 1st 2017.

There is also a credit allowable in 2018 and 2019 that can be taken for those wines that do not qualify for the lower tax discussed above including still wine containing more than 21 percent but not more than 24 percent alcohol by volume. Champagne, sparkling wine, artificially carbonated wine and hard cider also qualify for this credit.  The credit applies to the first 750, wine gallons removed during each applicable calendar year. Foreign manufacturers can take advantage of the credit by making an election to assign the credit to their importers. The Secretary of the Treasury is required to set up procedures to accomplish this without duplicating the credit when there is more than one importer.

 

The credit for wine other than hard cider is an amount equal to the sum of $1 per wine gallon on the first 30,000 wine gallons, plus 90 cents on the next 100,000 wine gallons and 53.5 cents per wine gallon on the next 620,000 wine gallons.  A different credit is available on hard cider.

 

BEER

Beer that was heretofore taxed at $18 per barrel is also is subject to reduced rate. The first 6 million barrels of beer removed for consumption and sale during the calendar years 2018 and 2019 will be taxed at a rate of $16 per barrel. Any additional beer removed will be taxed at $18 per barrel. A barrel cannot contain more than 31 gallons. As with distillers, foreign manufactures can take advantage of the reduced rates through a system to be set up by the Secretary of the Treasury that allows the Brewer to assign a number of barrels to each of its importers.

 

In the case of a brewer who produces not more than 2 million barrels of beer during the calendar year, the per barrel rate of the tax imposed will be $3.50 on the first 60,000 barrels of beer which are removed in such year for consumption or sale and which have been brewed or produced by such brewer at qualified breweries in the United States.

 

[1] Keven Danow is an attorney representing members of all three tiers of the Beverage Alcohol Industry and member of the firm of Danow, McMullan & Panoff, P.C. 275 Madison Ave, NY, NY. 10022.  (212 3703744). Website: dmppc.com; email: kdanow@dmppc.com. Arielle Albert is a partner of the firm of Danow, McMullan & Panoff, P.C. and is admitted in New York and New Jersey. This article is not intended to give specific legal advice. Before taking any action, the reader should consult with an attorney familiar with the relevant facts and circumstances.






KNOW THE LAW _ The Craft Beverage Modernization and tax Reform Act

February 12th, 2018

 

Congress passed and the President signed the Tax Cuts and Jobs Act.  The Craft Beverage Modernization and tax Reform Act was included in that act, with a sunset provision so that all taxes will revert back to the 2017 levels on January 1st, 2020.  The benefits of the new law vary depending upon the type of beverage alcohol produced.

 

DISTILLED SPIRITS

 

In the case of distilled spirts removed during the calendar years 2018 and 2019 for consumption and sale the applicable tax is $2.70 per proof gallon on the first 100,000 proof gallons and $13.34 per proof gallon on the next 22,130,000 proof gallons. The lower tax applies to all beverages distilled in the United States.  Foreign manufactures can also elect to take advantage of the reduced tax rate on distilled spirits. The Secretary of the Treasury  is charged with developing procedures for the foreign distillers to assign the reduced rate to their importers in such a way as to keep track of which importer gets the first 100,000 proof gallons and which the next 22,130,000.  Unless the rate reduction is extended, commencing January 1st, 2020 the tax on distilled spirits will return to $13.50 per proof gallon.  In addition, it appears that distilled spirits transferred in bond during the calendar years 2018 and 2019 can take advantage of the special bulk transfer rules in Section 5212 without regard to weather the distilled spirts are sufficient in volume to be classified as bulk distilled spirits.

 

WINE

 

Still wine containing not more than 14% alcohol by volume removed prior to December 31, 2017 was taxed at $1.07 per wine gallon.  For wine removed after December 31, 2017 and before January 1st, 2020 the $1.07 rate will apply to wine containing not more than 16% alcohol by volume.  Wine with more than 16% alcohol by volume will be taxed at $1.57 per wine gallon. That is the same rate that applied to wine above 14% before January 1st 2017.

 

There is also a credit allowable in 2018 and 2019 that can be taken for those wines that do not qualify for the lower tax discussed above including still wine containing more than 21 percent but not more than 24 percent alcohol by volume, champagne and sparkling wine, artificially carbonated wine and hard cider.  The credit applies to the fires 750, wine gallons removed during each applicable calendar year. Foreign manufacturers can take advantage of the credit by making an election to assign the credit to their importers. The Secretary of the Treasury is required to set up procedures to accomplish this without duplicating the credit when there is more than one importer.

 

 

The credit for wine other than hard cider is an amount equal to the sum of  $1 per wine gallon the first 30,000 wine gallons, plus 90 cents the next 100,000 wine gallons and 53.5 cents per wine gallon the next 620,000 wine gallons.  A different credit is available on hard cider.

 

 

BEER

 

Beer that was heretofore taxed at $18 per barrel also is subject to reduced rate. The first 6 million barrels of beer removed for consumption and sale during the calendar years 2018 and 2019 will be taxed at a rate of $16 per barrel. Any additional beer removed will be taxed at $18 per barrel. A barrel cannot contain more than 31 gallons. As with distillers, foreign manufactures can take advantage of the reduced rates through an system to be set up by the Secretary of the Treasury that allows the Brewer to assign a number of barrels to each of its importers.

 

In the case of a brewer who produces not more than 2 million  barrels of beer during the calendar year, the per barrel rate of the tax imposed will be $3.50 on the first 60,000 barrels of beer which are removed in such year for consumption or sale and which have been brewed or produced by such brewer at qualified breweries in the United States.