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FedEx liability in a sting by MA on Wine.com

April 3, 2008

From Wine & Spirits Daily:

"In a blow to Internet wine retailers, The Massachusetts Supreme Court ruled last week that Wine.com, the Internet wine merchant, cannot lay blame for shipping wine to an underage girl on their common carrier, FedEx. The court upheld a five day suspension of Wine.com's license in the state. A 19 year-old woman ordered wine from Wine.com, which was delivered to her home by FedEx without an ID check. Wine.com pays FedEx two dollars per package to check verify age of the buyer, but the FedEx deliveryman failed to do so. The Massachusetts ABC issued a suspension of Wine.com's license. Wine.com sued and it went to the Supreme Court."

The decision by the MA Supreme Court is here: http://www.socialaw.com/slip.htm?cid=17971&sid=120

The following are a few issues this cases raises:

  1. Paying FedEx to collect an adult signature is not a defense for the retailer against the driver failing to collect a signature; "eVineyard cannot evade responsibility for making sales to minors, which it has an affirmative duty not to do, by delegating the task of delivery to a third party."

  2. FedEx did however receive a 3 day suspension on their license to ship within MA.

  3. The 5 locations on the website where a customer is told in order to make a purchase on the site that they "swear and affirm" that they over 21 years of age, do not constitute a legal defense. "It also argues that the CI wrongfully misrepresented her age on the eVineyard Web site, in violation of the commission's investigative guidelines that prohibit decoys from lying about their age.(12) We reject these arguments."

  4. Wine.com was able to legally ship within MA by shipping through a subsidiary location within the state.

This case raises some questions about how Internet wine retailers can protect themselves from selling to minors. This sting operation appears to have neutralized the most common barriers to minors used by stores. The only additional safeguard not employed by Wine.com at the time of these sting operations (before 2005) was an age verification software system like IDology. It will be interesting to learn whether a similar case involving a retailer using age verification software leads to a different outcome.

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