WY: State Supreme Court Addresses What Constitutes a Sale

Recently, the Wyoming Supreme Court ruled that actions taken at in-home wine tasting events by independent contractors of an out-of-state vineyard constituted the sale of alcohol under Wyoming law. The vineyard at issue paid independent contractors to promote wines by holding in-home wine tastings. At these events, social hosts would invite friends, relatives, and neighbors to their personal residences to learn about the vineyard’s wines and accessories. The wine tasting events were free to attend, and there was no obligation to purchase wine or other products.  In addition to educating guests and promoting the vineyard’s products, the independent contractors brought bottles of wine and provided free samples to guests.  At the conclusion of the event, attendees were encouraged to contact the vineyard or fill out a “Survey & Interest Form.” The form asked for the attendees contact information and also provided a place where an attendee could order products. Any attendee requesting to buy wine on the form was, per the form, simply making an “offer to purchase” the products, which may be accepted or rejected by the vineyard. The independent contractors did not have authority to accept wine purchase orders, and they had no inventory available for sale.  The Survey & Interest Form, however, did require that the cost of all items that an individual was offering to purchase be totaled and that the individual making the offer provided his or her credit card number to which the cost would be charged if the offer was accepted.

Wyoming law prohibits the sale or attempted sale of alcohol in Wyoming, except by the Wyoming Department of Revenue’s Liquor Division. In 2016, the Division contacted the vineyard about possible violations of this law. The vineyard sued the Division in federal district court, arguing that the Division’s interpretation of the law violated its commercial speech rights under the First Amendment of the U.S. Constitution. The district court, after denying the Division’s request to dismiss the   suit, certified a question to the Wyoming Supreme Court regarding whether the definition of “sale” applied to the conduct of the vineyard and its independent contractors.

Under Wyoming’s alcoholic beverage law, the term “sale” “includes offering for sale, trafficking in, bartering, delivering or dispensing and pouring for value, exchanging for goods, services or patronage or an exchange in any way other than purely gratuitously.” The Wyoming Supreme Court concluded that the conduct of the independent contractors met this definition. The court noted that the statutory definition of the term “sale” was broader than the term is commonly understood. Furthermore, in the court’s view, the interactions at issue were beyond “purely gratuitous” because the independent contractors provided wine samples with the expectation that they would receive a completed Survey & Interest Form or a guest’s contact information. The court determined the interactions also constituted “pouring for value,” as the independent contractors received the completed interest forms in exchange for pouring wine. Finally, by providing an opportunity to purchase wine on the form, the independent contractors were “offering for sale” the vineyard’s products at wine tasting events.  Accordingly, the court concluded that the term “sale” applied to the conduct of the vineyard and its independent contractors. For more information on this decision, you may contact Alec Mullee at 202-533-3434.