A wine label is an important part of the packaging, and an attractive label can be a help in winning sales. But, as well as appearance, there are regulatory considerations.
When developing wine labels, two factors need to be considered. Firstly, the information that is required to be disclosed on the label, and secondly, whether the selected name, logo or other information may infringe any laws or other trader's intellectual property or other rights. The requirements are quite complex, and what follows is only a brief summary.
Disclosure requirements for wine labels arise under a number of regulatory instruments, including:
- Australian Wine and Brandy Corporation Act 1980 [AWBC Act];
- Australian Wine and Brandy Corporation Regulations 1980 [AWBC Regulations];
- Australia New Zealand Food Standards Code [Food Standards Code];
- The Australia – European Community Agreement on Trade in Wine; And
- World Wine Trade Group Agreement on Requirements for Wine Labelling.
Food Standards Code – Labelling for the Domestic Market
The Food Standards Code, among other things, sets out basic labelling requirements for alcoholic beverages and food containing alcohol.
These requirements include:
- declaration of alcohol; and
- statement of approximate number of standard drinks.
Wine is defined under the Food Standards Code as meaning "the product of the complete or partial fermentation of fresh grapes, or a mixture of that product and products derived solely from grapes".
Any declaration of alcohol relating to wine, fruit wine (including sparkling wines), and wine products and fruit or vegetable products containing more than 6.5% alcohol by volume must be accurate to within 1.5% alc/vol.
Similarly, any declaration of alcohol relating to fortified wine, fortified fruit or vegetable wine containing more than 1.15% alcohol must be accurate to within 0.5% alc/vol.
Any labelling on a package of a beverage which contains more than 0.5% alcohol by volume (measured at 20°C) but containing 10 or less standard drinks, must include a statement of approximate number of standard drinks in the package accurate to the first decimal place. For packages containing more than 10 standard drinks, the statement of approximate number of standard drinks in the package must be accurate to the nearest whole number of standard drinks.
The Government and the wine industry have agreed that the statement of approximate drinks in the package may be represented graphically.
While this is not mandatory, it is highly recommended by the AWBC as the standard for the wine industry. The minimum height of the logo is 14mm and it must be accompanied by the words "Standard Drinks".
Other requirements under the Food Standards include:
- A declaration if any of a number of prescribed allergenic substances have been used as an ingredient, food additive or processing aid and are present in the final product;
- A "best before" date must be printed on a label if such a date will fall less than two years after the date of package;
- A clear statement of the country(ies) where the wine was produced;
- A lot mark;
- The name and business street address of the vendor, manufacturer, packer or importer.
The Food Standards Code also requires that all mandatory information required to be included on a wine label be re-produced on the outer carton if the product is to be offered in the carton to consumers.
As well, the Food Standards Code contains prohibitions against the inclusion of representations on labels as to low alcohol content where the beverage contains more than 1.15%, and as to the 'nonintoxicating' nature of the beverage where it contains more than 0.5% alcohol, and as to the non-alcoholic nature of a beverage where it contains any alcohol.
The description and presentation of wine on labels is also regulated by Part 4 of the AWBC Regulations.
Wine is defined in the AWBC Regulations as meaning wine which is offered for sale in, imported into, or exported from Australia.
Where wine is made from a blend of grapes produced in more than one country, the description and presentation of the wine must set out:
- the name of the blend produced in each country;
- the proportion of the total blend that was produced in each of the countries, with the country in which the largest proportion of the blend was produced being mentioned first.
If the description and presentation of the wine refers to one or more varieties of grape, then the description and presentation must identify all of the varieties in descending order of their proportions in the wine. Wine may be described and presented as being of a particular variety of grape if it consists of at least 850ml/L of that variety.
Where the wine is made from a blend of grapes that come from different regions that have registered, or unregistered geographical indications, the description and presentation of the wine must set out the names of all the indications in descending order of the relevant grapes in the wine. This requirement is subject to further qualifications.
In addition, if wine is made using grapes that were harvested in more than one vintage and the description and presentation of the wine refers to one or more of those vintages, then the descriptions and presentation of the wine must refer to all of the vintages in descending order of the proportions of the relevant grapes in the wine.
There maybe other labelling requirements under the AWBC Regulations that have not been discussed above.
Label Integrity Program
A Label Integrity Program is administered by the Australian Wine and Brandy Corporation pursuant to the AWBC Act. The object of the Program is "to ensure the truth, and the reputation for truthfulness, of statements made on wine labels, or made for commercial purposes in other ways, about the vintage, variety or geographical indication of wine manufactured in Australia".
Under the Program, wine manufacturers are required to keep certain records of transactions involving wine to which a 'label claim' is made.
A label claim in relation to wine goods means "a claim about their vintage, variety, geographical indication made on a wine label, in a commercial document or in an advertisement, and includes a claim so made about the vintage, variety or geographical indication of wine goods from which they were manufactured."
The types of records required to be kept by a wine manufacturer under the Program include:
- Receipt of wine goods;
- Manufacture of certain single wines;
- Manufacture of certain blends;
- Sales of certain wine, and grape extract;
- Disposals of certain wine, and grape extract;
- Transfers of certain wine, and grape extract;
- Blends; and
- Geographical Indications.
A wine manufacturer is guilty of an offence if it intentionally fails to make or keep the applicable records, or it intentionally makes or keeps a record of the matter that is false, misleading or incomplete in material particular. The penalty for committing such an offence is $15,000 for a corporation or $3000 for an individual.
The AWBC Act also confers powers on an inspector appointed under the Act to inspect wine premises for the purpose of finding out whether label laws are being complied with, or in circumstances where an inspector has reasonable grounds for suspecting that there is evidence of the commission of a label offence on a wine premises. The inspector may only inspect a wine premises with the consent of the occupier.
World Wine Trade Group Agreement on Requirements for Wine Labelling
The World Wine Trade Group Agreement on Requirements for Wine Labelling [WWTG Agreement] is an international agreement which was concluded in order to facilitate the international trade in wine by minimising unnecessary labelling-related trade barriers through the adoption of common labelling requirements. The countries that are party to the WWTG Agreement include Argentina, Australia, Canada, Chile, New Zealand and the United States of America.
The Agreement, among other things, prescribes Common Mandatory Information to be included on the labels of imported wines. This information includes:
- Disclosure of the country of origin using "Product of" or "Wine of" or a similar phrase, or the name of the country of origin, used as either an adjective or a noun in conjunction with the word "wine";
- Net contents of the wine to be stated using the metric system of measurement and displayed as either millilitres or litres;
- Actual alcohol content to be indicated in percentage terms to a maximum of one decimal point.
The WWTG Agreement does not preclude the countries that are parties from requiring additional information to be disclosed where that information is National Mandatory Information.
INFRINGING OTHER RIGHTS?
As mentioned above, it is essential when developing any wine label to consider whether the name, logo, or get-up of a proposed label may infringe the rights of others, or contravene any relevant laws, as well as the label laws discussed above.
Trade Marks and Other Products
Before deciding on the description and presentation for wine, it is prudent to undertake some due diligence to determine whether a wine described or presented in the same or a similar way is already on the market. This should include checking whether any features of the chosen description and presentation are registered as trade marks. Even if the name or features are not identical, it is necessary to consider whether any feature of the chosen description and presentation could be the same as, substantially identical or deceptively similar to, a registered trade mark.
Not only registered trade marks must be considered, however. If a name or feature of description or presentation of a wine is the same, or so similar to a name or product of another producer as to be likely to deceive or cause confusion, this may give rise to an action under the Trade Practices Act 1974 (Cth), or some other Acts, or an action at common law called "passing off".
It is, of course, more difficult to know of other products in the market than to search for registered trade marks, but enquiries should be made.
Conducting due diligence at the early stage of brand development can save considerable time and money in the future.
It is imperative that geographical indications are correctly selected and used appropriately on labels. A Geographical Indication [GI] in relation to wine means:
More generally speaking, a GI is an official description of an Australian wine zone, region or sub-region designed to protect the use of the regional name under international law. In order to use a GI in the description and presentation of wine, at least 85% of the grapes used to make the wine must have been sourced from the region identified by the GI.
Australian GIs are listed on the Register of Protected Names which can be accessed online through the AWBC website.
In 2008, the Australian Government signed the International Australia-European Community Agreement on Trade in Wine [Trade Agreement]. Under the Agreement, Australia has agreed to discontinue using over 2, 500 European GIs in addition to the twelve already listed on the Register of Protected Names, which includes Champagne. The protection afforded to the GIs listed in Annex II of the Trade Agreement will extend to translations of the GIs and the use of terms such as "kind", "type", "method", in conjunction with a GI, for example "méthode champenoise".
In addition, Australia has agreed to cease using approximately 300 traditional expressions, an example of which is "Grand Cru" in relation to Quality Wine.
It is therefore necessary to ensure that the GIs and traditional expressions specified in the Annexures to the Trade Agreement are not used in the development of future Australian wine labels.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.