Wente - why didnt it become Monsanto?

A slew of posts from me, as I've been a bit delinquent, but this is a short one.

So, I asked the question in class, but I still wonder, why didn't the Wente family patent their strain of the Chardonnay, the Wente Clone.

Monsanto is a massive, U.S. agricultural and agrochemical company, which was bought by Bayer last year in a $66Bn merger. The reason I mention Monsanto is that they have been producing genetically modified strains of corn and other agricultural products for decades. In addition to creating such strains, they have also been patenting these strains as proprietary inventions. While Monsanto is an unpopular name among the general public, they have been using GMOs and now new gene editing technology, such as CRISPR to create new strains of crops for decades. They are then able to sell these crop strains to other farmers and reap substantial financial benefits. There was even a Supreme Court case (too many legal references, I know), upholding their patents in 2013 and their right to control the distribution, sale, and use of such products.

One wonders why the Wente family, with its extremely popular chardonnay clone, never patented their own genetically modified strain. Perhaps being a wine grower in a small community means something different and leads to more humanistic tendencies than a pure profit seeking company. Had the Wente family had the foresight, however, they might be able to extract large rents from all the wine growers across the state who make the very popular Chardonnay with the Wente Clone (then again, that might mean higher prices for all the white wine drinkers out there). Any way food (or rather cheaper Chardonnay) for thought.

Legal Opinions are No Fun

Ok so this post is a little bit stale, having sat in my drafts for a while, but here it goes:

In class two weeks ago, we heard about the 21st amendment's 2nd clause, the three tiered system, and Granholm v. Heald (including meeting with the lawyer who argued it in front of the Supreme Court - no small feat and a true honor to get to hear from her). When discussing the ability of the federal government to regulate beer, wine, and liquor under the commerce clause, many thought that was unfair and that the rules were complex and out-dated.

The history of Supreme Court ("SC") rulings regarding the Commerce Clause, however, yields a much more complex history. In the early 1900s, the courts operated under the decision of the Lochner case, known as the "Lochner Era", where the SC used the Due Process Clause of the 14th amendment to protect economic rights, i.e. freedom to contract. This meant that state laws establishing minimum wages, limiting the number of hours worked, or price floors were illegal. It would also have meant that imposing labor standards, such as maximum hours for women, would have been illegal (but the courts justified protecting women as they were viewed as a separate class at the time). This changed during FDR's presidency and the New Deal. After FDR threatened to pack the court, the SC upheld a law enforcing minimum wage under the theory that the constitution does not protect freedom to contract, only the inability to deprive someone of their liberty without due process of the law.

For the purposes of this class, however, there are several laws and rulings that were passed regulating agricultural products that the SC upheld, which are not dissimilar from the laws regarding production, distribution, and sale of alcoholic beverages. In midst of the Great Depression, several laws were passed to limit the production of agriculture, such as wheat, milk, etc. In 1942, in the case of Wickard v. Filburn, the SC upheld the Agricultural Adjustment Act which limited the amount of wheat a farmer can grow, which was intended to control supply and thereby stabilize prices. Filburn argued that he should be allowed to produce additional wheat outside of his quota for personal consumption by his family and his livestock. The SC disagreed and upheld the law, stating that if he and other farmers all did the same thing, then in aggregate their additional production would impact consumption and impact the market (what became known as the "aggregation principle"). Therefore, even though the production did not enter the "stream of interstate commerce", the behavior would impact the overall market in aggregate and therefore could be regulated.

In the case of conflicting state vs. federal law, the SC can act as a good arbitrator, such as in Granholm, but in other instances, Judicial Activism may not be as favorable when Congressional Acts that many support are overturned. In Granholm, the class was clearly excited for the SC to overturn what was an apparent conflict between state law and federal law, whereby State law tried to advantage in-state producers and sellers, over out-of-state producers. The SC, as we know, held that this was in contradiction to the Commerce Clause and that the 21st Amendment was not regulating interstate commerce, only creating a uniform system by which all states, and those businesses within them, had to operate. While we may applaud the SC for its decision in Granholm, there are other cases in the modern era of interpretation of the Commerce Clause, where the SC overturned various Acts as not substantially related to the Commerce Clause. In U.S. v. Lopez, which ushered in a modern era of interpretation concerning the Commerce Power of Congress, the SC overturned the Gun-Free School Zone Act and held that Congress could not prohibit the possession of firearms in school zones, as there was only an attenuated link to interstate commerce for guns, and therefore an inability for Congress to regulate them near school zones under the Commerce Clause.

So while we may think that Congressional laws regulating various economic products across states should not necessarily exist, such as in the case of alcohol, there is a long history of why it may be necessary and why, in the case of Granholm, the use of the Commerce Clause is helpful in order to overturn discriminatory State laws towards out-of-state producers.

Wine ads for a new generation

Well that Super Bowl was a real yawner...The ads surely kept us all glued to our seats though.

One wine ad by [yellow tail] made its way to dozens of markets:

This represented quite a shift from the company's 2017 ad, which was called by many as the "worst ad" of the Super Bowl:

I'd bet [yellow tail] at least did some research on what it takes to appeal to the mass wine consumer, and there appears to be a clear attempt to go after the fun-loving millennial, similar to what we might expect from a Bud Light commercial (apparently 78% of Super Bowl viewers say "beer [is] an important part of their gameday experience").

[yellow tail] represents a departure from other wine ads, such as Brokenwood, which shoot for portraying the purely authentic:

Or try Rutherford, or Jacob's Creek. They love piano and dramatic imagery of wine bottles:

Or how about he most boring ad ever made:

There might be a lesson: if a market is dominated by ads that don't target millennials, therein lies an opportunity. Take it from [yellow tail], who has grown into one of the biggest wine brands in the world by targeting a new kind of consumer, one ready for affordable, playful consumption.

Wine-Tech: B2C and B2B Wine Technology Businesses

Entrepreneurs far and wide are trying to cash in on building products for wine consumers (B2C) and winemakers / retailers (B2B).

On the consumer-side, two themes stand out:

• Wine Preservation
• Subscription Wine Services

And, on the B2B side:

• Inventory Management
• Winery Management

The consumer businesses seem to be attracting far greater venture funding, given the large market opportunity versus the limited market within the B2B wine realm. 

If I were budding entrepreneur in the space, the B2B businesses seem potentially interesting if purchased through a search-fund model. Also, there appears to be a gap in the market for wine-focused marketing solutions --- as we continue to hear in class, winemakers have very specific needs when it comes to marketing their products; it seems like there might be an opportunity to build a niche product or services business in this segment, particularly if the entrepreneur (me?? you?!) can build a database of wine consumers & preferences over time and action them through online marketing or through direct mail.

Here's a list of some companies playing to both sides of the space:

B2C

• Coravin - bottle opener / aerator - $62M raised
• L18 Holdings - subscription wine service - $131M raised
• Winc - subscription wine service - $42M raised
• Penrose Hill - personalized wine subscription - $7.3M raised
• Plum - wine pouring / preservation - $9M
• Kuvee - wine pouring / preservation - $6M

B2B

• Drync - inventory software for alcohol retailers - $4.4M raised
• Orion - winery management software
• WineSoftware.com - winery management software
• WMDB - winemaker's database / winery management software
• Wine Management Systems - winery management software

Sources:

• https://pitchbook.com/news/articles/you-had-me-at-merlot-vcs-investing-in-a-new-vintage-of-wine-startups
• https://www.cbinsights.com/research/wine-tech-startups-to-watch/ 
• Angelist
• Crunchbase