You’ve undoubtedly heard the news that we dodged two massively concerning tariff-related bullets this January and February. There remains a great deal of misinformation in the market about tariffs in general – Let’s take a few minutes to review United States Tariff policy, where things currently stand, and what we can expect moving forward.

Let’s give huge props to those in our industry who took the time to stand up to current and proposed tariffs between October 2019 and February 2020. An astonishing 25,624 public comments were logged on the USTR Large Commercial Aircraft Tariff docket, and 3,761 on the USTR French DST Tariff Docket. We believe that loud uproar made all the difference here, and if you were part of the noise, thank you. Individually we would like to thank Jon Bonne for his far-reaching guest post via CNN, Harmon Skurnik for his terrific contribution in The Washington Post, Marvin Shanken for his aggressive work in using his reach to generate consumer uproar, and the two dozen industry leaders who spoke on everyone’s behalf at the actual USTR hearing this January: Jeff Zacharia (National Association of Wine Retailers), Richard Blau (Sokolin), William Tomaszewski (Wine.com), Benjamin Aneff (Tribeca Wine Merchants), David Waldenberg (BNP Distributing), Peter Weygandt (Weygandt-Metzler), Michelle DeFeo (Laurent-Perrier U.S.), Annette Peters (Bourget Imports), James Federico (VINTUS), Barkley Stuart (Southern-Glazers), Jenny Lefcourt (Jenny & Francois Selections), Philip Burkhart (Latitude Wines), Eric Faber (Cutting Edge Selections), Timothy Gagnon (Selection Massale), Michael Daniels (Vintage 59), Mary Taylor (Mary Taylor Wine), Christy Franc (Copake Wine Works), David Bowler (David Bowler Wine), Edward Swain (Devenish Wines), Geoffroy Ducroux (Avant Garde), Lyle Fass (Fass Selections), and Eben Lillie (Chambers Street Wine). If you have yet to read Alder Yarrow’s account of the hearing you ought to. It is well-worth your time.

THE SECTION 301 INVESTIGATION

What is the deal with an American President imposing tariffs anyway? Didn’t our school textbooks consider this a duty of Congress? Responsibility for tariffs was placed in the hands of Congress in 1779 via Article I of the U.S. Constitution. This responsibility remained with Congress until the Cold War era, when several statutes were passed, which in effect moved the responsibility of tariff and trade enforcement to the Executive Branch. The rationale for these changes being that in a new Cold War-era, most trade disputes were more closely related to national security than to commerce.

The two tariff threats that stressed all of us out this December-February came way via “Section 301 Investigation.” What exactly is a Section 301 Investigation you ask? The United States Trade Act of 1974 authorized the President of the United States to impose tariffs on a country if the United States Trade Representative (USTR) found that an “act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce.” This practice was used moderately between 1974 and 1994 (123 total Section 301 investigations if we want to be precise). The practice almost completely disappeared after 1994 thanks to the creation of the World Trade Organization, which was created as a “better” (and most importantly multilateral) solution for all involved in the new, post-Cold War era. President Trump famously came to office with a “different” approach to established institutions, including an aggressive and unilateral take on trade negotiation, unlike anything we’ve seen in U.S. history. The President has brought the practice of the “Section 301 Tariff ” back from the dead, with his first bomb being the Section 301 investigation that sparked the well-documented economic mess that is the US-China Trade War.

This is not a political post and I’m trying to stick to the facts. Do a bit of reading, and you’ll find that almost all economists agree that Trump’s use of Section 301 tariffs have harmed all economies involved. When you lump together the various tariffs the Trump Administration has imposed during the last 24 months, The Tax Foundation’s “Tariff Tracker” cites a significant GDP loss, decreased average wages, and 394,000 lost jobs. The United States Treasury released similar findings this January stating that while the U.S. economy has remained healthy, this is “in spite” of destructive tariff-driven U.S. trade policy. With such results, we now have various groups of Senators and Representatives working to amend the current Cold War-era trade statues that give President Trump to execute tariffs and tariff threats at will. If some of these proposed changes go through we could see an increased role for Congress overall in tariff-related matters, limits to the types of threats a president can reference as a justification of tariff implementation, a time limitation on the duration of any President-determined tariff schedule, and possibly full shifting of the responsibility of tariff imposition from the President to other parties (Congress and/or the Secretary of Defense).

TWO DODGED BULLETS

We’ve avoided immediate catastrophe on two fronts so far this year. Let’s start with the proposed “Up to 100% Tariff ” on all French Sparkling Wine. This was a hardline negotiating tactic Trump used to talk Emmanuel Macron into suspending the retroactive Digital Services Tax France unilaterally imposed in 2019 for implementation on January 1, 2020. There are interesting storylines and theories as to Trump’s strategy there, we’ve covered those in prior posts, and the bottom line is that an agreement made at the World Economic Forum in Davos this January means that both sides have kicked the issue to the curb until January 2021. In the meantime, the Organisation for Economic Cooperation and Development (OECD) will attempt to create a multilateral long term framework for the taxation of digital services in all developed countries. We are not holding our breath on a full resolution from the OECD between now and next January, as the issue is extremely complicated. By definition, any digital taxes imposed by individual countries or by a comprehensive OECD policy will disproportionately affect the U.S. based companies who control most of the globe’s digital landscape (Google, Apple, Facebook, and Amazon). Yes, we can think of this January Macron/Trump outcome as a temporary “win”, but know that this whole DST issue is an ugly beast due to make a return in the near future.

On Valentine’s Day we dodged the second big bullet of 2020, which was a potential restructuring of the tariffs imposed on wines from France, Germany, Spain, and the United Kingdom as reparations for the WTO decision that determined these four countries unfairly subsidized Airbus at the expense of Boeing. The USTR’s Section 301 Investigation found that Airbus subsidies had continued since the original WTO ruling, and the fear was that tariffs would expand to additional categories (all European countries, all alcohol levels, and formats, and up to 100%). In the end the USTR made little change to the tariff categories initially set in October 2019, with the most notable difference being a 5% tariff increase on aircraft parts imported from E.U. countries. In theory no further changes will be made to this tariff schedule until mid-August, which means that we can order with minimal fear of arbitrary tariffs coming into play during the transport time of EU-USA container vessels, which was the nightmare situation that resulted in a widespread stoppage to most EU-USA wine import activity from December through mid-February.

LOOMING THREATS

While it is nice to have some predictability, two threats loom on the horizon. First is Italy’s Digital Services Tax – This 3% tax went into effect on January 1 2020, and Trump has publicly denounced it as “no bounissimo,” saying that by definition any tax on digital services targets U.S. firms (the majority of Italy’s Digital Services revenues come through Google, Apple, Facebook, and Amazon). Whether this will escalate into a similar standoff to the one we witnessed between Trump and Macron is anyone’s guess, although at this point, we will assume that things are safe until January 2021.

The more provocative threat relates to a potential trade war escalation that could occur when the WTO releases final reparation settlement numbers to the European Union this May/June as a result of the second Airbus/Boeing case. This is the exact opposite case that spurred the tariffs awarded to the U.S. – It will almost certainly award similar tariff permissions to the E.U., as the United States illegally subsidized Boeing in the same capacity that the European Union subsidized Airbus. Should Trump take offense to E.U.’s actions on these tariffs, we may see the escalation of a real titfor- tat trade war on par with the 2017-present China debacle. With an election cycle in progress and as of this week plummeting global stock markets, we expect that the likely May/June tariff permissions awarded to the E.U. will mean a late 2020 settlement between both sides and the elimination of all Boeing/Airbus tariffs by early 2021.

MARKET CONSEQUENCES THUS FAR

As we detailed earlier, our direct import model has kept pricing reasonable for most of what we import, with our retail prices remaining below the pre-tariff national average for most wines in question. For some details on this please see our initial post from the grapex.com blog. Products handled through third-party importers have been much more of a challenge, we’ve discontinued a few dozen due to unacceptable proposed post-tariff price levels, and this will continue to be an issue if tariffs drag on. We guess that folks who function solely in the “importer” trade will cut down on employees to establish a leaner margin model.

We’ve experienced a large amount of growth with customers looking for compressed margin solutions, and our post-tariff sales figures are significantly up versus the same period last year, especially so for our Washington, Oregon, and California 3PL arm.

Some of us predicted a spike in non-tariff categories – We have not experienced action on this front, probably due to the efficient direct pricing structure mentioned above, but also because there are few actual substitutes for the impacted categories – New Zealand Sauvignon Blanc does not replace Sancerre, Oregon Gamay is still overpriced versus tariffed Cru Beaujolais, and nothing from the New World seems to beat $10-$15 tariffed Sur Lie Muscadet as a mineral-driven oyster companion.

The biggest issue for us at Grape this far was our decision to suspend shipments from the time of the December 6th announcement of possible tariffs and the February 14 resolution. We now have a backlog of containers on the water, and you can expect some short inventory gaps in staples like O+T Sauvignon, Fevre Fevre Chablis, Bonnamy Rosé, and Bag in Box Lumieres Cotes du Rhone.

Overall most of you on the “buyer” side would agree that there has been an oversupply of SKU’s in market. Buyers will see a thinner selection in terms of availability in 2020/2021. Smaller importers and distributors will be foreced to close (more than a few will be unable to handle the cash flow burden of 25% tariffs, which are due upon arrival in port rather than at 90 or 120 day terms as is customary with actual invoices on imported wine). We expect surviving distributors to act similarly to us in discontinuing, for example, that $17 pre-tariff third-party-sourced Cahors, which is now $22 and just outside of an acceptable price range.

These unilateral tariffs amount to a tax on every layer of our trade. They are paid by French producers, who are almost universally giving their U.S. importers and distributors a 10% discount to help combat tariffs. They are paid by American importers/distributors, all of whom are sacrificing margin as well. They are paid by American consumers, who, despite the sacrifices of the channels mentioned above, end up spending on average $2-$4/bottle more for the same bottle of impacted wine than they did this Fall. As we’ve stated on this platform previously, here is to a timely resolution of these unusual and mutually destructive disputes.

This is not a political post, and without taking any political stance I’ll say this: Over the last 80 years it has become crystal clear to anyone with a basic understanding of economics and/or history that in almost all instances tariffs decrease long-term economic prosperity for all parties involved. They restrict our natural human instincts to cooperate, limiting our personal freedoms while in the process inviting opportunities for distortion and fraud. Tariffs are as un-American as martian space dust – This is a universal truth that people on all sides of the political spectrum will agree with.

Tariff Round One

As we all know the October tariffs (aka Large Commercial Aircraft Tariff Resolution Round One) only impacted a select group of wines – Still wines at 14% or below ABV from France, Spain, Germany, or the United Kingdom. Because the US Government only gave the our industry 11 days of notice, all major importers inevitably had millions of dollars of goods on the water during the time of announcement and this spelled cash flow devastation for many…Why the cash flow devastation you ask? These tariffs are due (and in most cases auto-deducted from bank accounts) upon the physical arrival of product in destination port. Were you an importer with four containers of wine on the water on October 17th? Let’s assume each container contained $100,000 worth of wine? Congratulations you now instantly and unexpectedly owe the United States Government $100,000 (a 25% tariff on the value of each container means $25,000 times 4 which means $100,000). This “four container’ scenario is pretty mild. Most mid-sized importers/distributors in our industry had much higher volume than this on the water at the time of announcement. I did not get into the aforementioned cash flow angle when originally covering this topic, but at this point I’d say it is the most disastrous implication of the whole mess.

Cash, credit, and insurance…not the most exciting of topics, but essential in this discussion. Most European wineries rely on one of two credit insurance companies to cover their receivable risk, and these companies proactively dictate the amount of receivable debt a winery can hold for a given US importer/distributor. What happens if/when these credit insurance companies refuse to cover receivables for US importer/distributors? We’d end up in a situation where all business is prepaid, with the extra strain of a tariff bill due upon port destination. This is untenable and would mean a stop to most EU-US wine commerce. All is still “green light mode” with the major credit insurance companies, but my colleagues in London tell me they know of uninsured wineries who are now starting to refuse the release of new orders to US importer/distributors fearing that October’s tariff surprise will end up bankrupting their US importer/distributor customers due to the implications of the cash flow strain of the initial 11 day “surprise” cited above. An ominous sign.

From a pricing standpoint, almost all impacted European wineries graciously offered at 5-10% discount to help absorb the 25% tariff bill. From there one of two things happened. Firms who operated on an “Efficient” business model (i.e. one with minimal channel waste, most often this meaning a direct import route to market) accepted offers from wineries on this 5-10% discount on new invoices, squeezed their own margins to share in the pain, and made small upward adjustments to prices, resulting in retail pricing on average a few dollars higher than it would have been pre-tariff. For the efficient firms things are more or less going by math laid out in the example I used this October where a 3,40 Euro cost directly imported, $12 retail French Chardonnay ends up at $15 retail post-tariff. For this “Efficient” set life is lean but still manageable. How about firms who operate on a “Less Efficient” business model (ie one mostly dependent on three separate 30% margin tiers)? The majority of imported wine in the US comes to the consumer this way. Most of these firms panicked. Anyone in that camp knew that their $15 pre-tariff Chardonnay was already $3 too expensive and that seeing it go to $18 post tariff would mean a screeching halt on the sales front. A 10% reduction in ex-cellar cost from the winery does little to help when you have a 25% tariff with three margins stacked on top of one another, so what we have seen with the “Less Efficient” crew is either denial (i.e. no price changes and no new containers on the water), salespeople agreeing to lower commission rates, or end-of-year layoffs, and in some cases a depressing combination of all three.

The retail side has been slightly less interesting thus far but things will devolve quickly in 2020. At most chains distributor price increases are passed onto monthly shelf tags regardless of whether or not stock was purchased prior to the tariff/price increase. On this front we saw a relative slowdown in depletions of our impacted wines (yes we have fast container turnover and ended up with a long list of Nov 1 price changes) – Consumers in general snubbed their now-more-expensive “first choice” for a similar style replacement from a non-tariffed region. At bottle shops we saw smart buyers avoid early tariff items, preferring to purchase as much pre-tariff stock as they could find while it is still around. For the country’s largest independent retailers, who represent a huge amount of 3PL business for us, we saw a crippling effect – Pricing on this level needs to be competitive with global Wine-Searcher averages, a large volume of these sales are invoiced to end-consumers pre-arrival, and uncertain tariffs meant a complete freeze on futures orders for European wines. Many Bordeaux negociants are penciling in “0’ for their 2020 USA sales projections. Inventory turnover from winery to shelf with this retail sector is fast, and this sort of low margin 3PL business almost always necessitates immediate tariff payment on behalf of 3PL import partners – Something not in the business model or capability of most of the United States’ high-volume independent retailers. Dominoes will fall, even with just the initial 25% tariff.

As if this wasn’t enough chaos we were welcomed with two new tariff surprises in early December, which we will call Tariff Round Two: “The French Digital Services Tax Tariff” and the Tariff Round Three: “The Second Installment of the Large Commercial Aircraft Spat.”

Tariff Round Two

Round two brings us the Trump Administration’s reaction to the new 3% Digital Services Tax France retroactively placed on large American technology companies this summer with a 1/1/19 effective date. What is this tax you ask? In short it is France’s attempt to regain tax revenue that has “gone away” as fulfillment of goods and services continues to shift from French-owned brick-and-mortar firms to multinational digital firms. How does this go down exactly? Let’s say Amazon.fr invoices a baseball bat to a consumer in Dijon. Local French governments theoretically lose out on much the tax revenue that would have been created by a brick-and-mortar firm. Most studies quote this revenue loss at 13% in total (on average digital service “sales” generate 9% in combined French local/national tax revenues, whereas brick-and-mortar “sales” generate 22% in combined tax revenues). The European Union has been working on a unified taxation plan to address this revenue shortfall, but limited progress has been made and the French went rogue in taking a unilateral decision to blaze ahead with their own taxation plan. Why? France has a huge budget deficit and must pay for, among other things, the agreed pension and social safety net demands of the “yellow coat” movement (remember that last winter?). Ironically most experts on either side of the aisle consider France’s Digital Services Tax a tariff in and of itself and the odds are high that if this tax makes it to a WTO trial, France will lose in the same way the European Community lost the Large Commercial Aircraft case this October. Harvard Business Review breaks down this digital tax controversy thoroughly, have a look by clicking here.

Regardless of a person’s position on France’s approach to the taxation of digital services, a tentative “deal” was reached between the US and France this Fall where taxation of such services would be addressed and resolved by 2021 with any overpayments from France’s existing 2019-2020 rates refunded to Amazon, Google, etc. at time of a final multilateral agreement. Everything seemed fine, but earlier this month the Trump Administration decided open up a Section 301 investigation into the “discriminatory nature of the French tax,” playing offense by threatening tariffs during what most pundits assumed would be a balanced 24 month negotiation period. The gory details? The Trump Administration promises a tariff of up to 100% on all French sparkling wines along with many other French luxury goods including most cheeses, spirits, porcelain cookware, and designer handbags. To read the full list of items tentatively slated for this 100% tariff you can click here.

The Trump Administration by matter of policy accepts open comments which are due until 1/6, and we expect a final decision on 1/14. From there we project that this round of tariffs will go into effect 1/17/20 based on the short 11 day notice given the last time around. The consensus amongst government contacts in both the US and in Europe along with our colleagues in the freight industry is that this round of tariffs will proceed in full as threatened. Because it hits some very powerful interests (Louis Vuitton Moet Hennessy for example), things could get explosive and that is of course Trump’s whole point in targeting the categories listed.

As a frightening side note, other countries including Italy and Turkey are attempting to enact similar digital services taxes independently of a more coordinated EU approach. Not good.

Tariff Round Three

Now is the time to talk about Tariff Round Three, which is the result of a 12/2/19 WTO rejection of the EU’s appeal to October’s Large Commercial Aircraft case – The one that put the initial round of 25% tariffs into effect. Why was the EU’s appeal rejected? The WTO determined that the EU is continuing to subsidize Airbus illegally, which resulted in more Trump Administration activity and this new tariff threat. What are the details here? We are looking at a second round of tariffs on a broad assortment of European goods, all of which are threatened to go up as high as 100%, and this time they include all categories of wine and also all EU member countries. To read the whole list, grab a glass of scotch while you still can and click here. The Trump Administration is accepting comments on these proposed tariffs until 1/13, with a likely decision to be announced on 1/17. All final tariffs from this wave are expected to go into effect on product landing in port after 1/28/20, again, based on an assumed 11 day notice period. Kleenex are not on the list which is good because we will need them should this pass.

What Next?

Some importers are hot-shotting wine into the USA in “buzzer beater” fashion – This theoretically works for East Coast ports assuming wine is loaded in the next week or so. Strikes in France are making this difficult however. Others are shipping wine via air freight, which is an approach we’ve taken on some higher-end wines (it makes little economic sense for anything over 15 Euros in cost when you take into account that air freight plus airport customs clearance will run you upwards of $3.50 per bottle on a good day). Both are only band-aid solutions, and gambles at that.

You might at this point ask about the status of the “other” WTO Airbus vs. Boeing subsidy case? You know, the one that is essentially the opposite of the October commercial aircraft case? The United States was found guilty for subsidizing Boeing in exactly the same way the EU subsidized Airbus, and “reparations” (i.e. acceptable tariffs against the US) will theoretically be determined by the WTO sometime in 2020. Why do I say theoretically? Two of the three WTO Judges who made the the October and December decisions are now finished with their WTO tenure. There are no successors to these positions because the Trump Administration is blocking any action on new appointees. You need a minimum of three WTO judges to try a case. This effectively means no WTO (for now anyway), and no WTO means no decision on tariff rights awarded to the EU, and more alarmingly a world with no limit on new tariffs.

Does this all sound hellish to you? Now is the time to make your concerns heard! Please take five minutes today to voice your opinions to the Trump Administration on both proposals. We don’t care if you live in the US, in the EU, if you are in the wine industry, or if you are a consumer – think of this as your duty as a freedom/choice loving human. To comment on Tariff #2 click here and to comment on Tariff #3 click here. All finished with your comments? Good work. Contacting both of your State Senators is smart as well, and also quick to do… most of the time they will even write you back. We made a US Senator contact cheat sheet for you, click here and take action.

Thanks for being part of our community at Grape, and here is to a fair and timely resolution these ongoing trade disputes.