by Andrew Chalk

After two periods of public comment the Texas Department of Agriculture (TDA) released their final response to my Fall 2013 request for a rules change to abolish the current rule (that a wine carrying the Go Texan logo on its label may contain a minimum of 0% Texas grapes). The essence of the ruling is that this practice will continue as the status quo.

The TDA’s second period of public comment produced fewer responses than the first, and as a result the overwhelming proportion came from existing wineries. Despite this bias, a large majority of commentors (59%, vs. 61% in the first public comment period) opposed the 0% rule. The TDA therefore stands in opposition to (fairly overwhelming) public opinion and in so doing continues to show how it lags the evolution of the Texas wine industry. It represents the interests of those who sell wine that carries the Go Texan logo but which is neither made in Texas nor made from Texas grapes.

This result is very disappointing. Texas grape growers and wine makers have to compete hard enough against this bulk wine without their own TDA setting up a program to promote those products as Texan.

Towards the end of its opinion, the the TDA appears to offer a hint of a change in future rule-making when it says “Additionally, as two-thirds of respondents supported a rule change of some type, this exercise has demonstrated the need for a change in TDA policies related to the use of the GO TEXAN certification mark on wine. To accomplish this, we will move forward in structuring agency guidelines on the use of the GO TEXAN mark to address issues raised during the comment period. Specifically, we will implement those ideas to limit the use of the mark on wine bottles based on the origin of the fruit.” Unfortunately, this statement does not give a timetable, or offer any specific rules to “limit the use of the mark on wine bottles based on the origin of the fruit” (having just rejected a proposal that offered precisely that).

As a result, this phrase should realistically be regarded as totally empty. If the TDA had said, for example, “effective Jan 1st, 2015, the Go Texan logo may only be used on wine that is made in Texas. If any part of that wine is made from non-Texas grapes, the fact, and percentage, must be clearly disclosed on the label”. The fact that the agency chose not to do so is something that I interpret as a signal that it does not want to put up any obstacles to the juice mixers.

What Are The Lessons from The TDA Ruling?

To juice mixers. Juice mixers are companies that bring in tankers of finished California bulk wine, mix it in Texas, and apply for and use the Go Texan label on bottles sold in Texas. They don’t make wine in Texas, they don’t use Texas grapes, and they have no intention of ever doing so. Their eligibility for the logo is based on them ‘processing’ their product in Texas. I asked the TDA in the Fall of 2013 for the minimum requirements for the the department to consider them to be ‘processing’ and have yet to get a detailed answer. From what I see on supermarket shelves, almost anything goes.

The TDA ruling says ‘mix away’. The department gives absolutely no credible sign that this industry, that is so harmful to the Texas wine industry, will be impeded.

To people who want to start a business: For class of 2014 business school graduates who want to start a business (and maybe get funding from Shark Tank), the TDA ruling says “Start your own juice mixing business. No experience of wine making needed. We will help you sell to 25m people in one of the most prosperous states in the nation by giving you the Go Texan logo to give home state credibility to your product.” If the California drought doesn’t dry up your supply of jug wine, you might get rich.

To Texas wineries: The TDA continues to allow non-Texas wines to masquerade as Texas wines. In addition to all the other challenges that you face, you have to explain this to consumers (I promise to continue to help).

To Texas grape growers: Odd that they call it the Texas Department of Agriculture. This ruling specifically helps California agriculture and penalizes you.

To Texas Consumers: Avoid wines labelled “Go Texan”. It is non-Texas wine that gets the most leverage from the logo. Look for wines that clearly state the origin of the grapes on the front label. They will usually say ‘Texas’. It might say an AVA (American Viticultural Area) like Texas Hill Country or Texas High Plains. It may even say a Texas county (three examples that I have seen are Mason County, Williamson County and Dallas County). Avoid any wine with small print (it will always be small print) on the back label that says ‘For Sale In Texas Only’. That is almost certainly a fake.

Below is the full text of the TDA response (a public document).

Dear Mr. Chalk, Thank you for submitting a request for rule change to Texas Administrative Code, Title 4, Part 1, Chapter 17, Subchapter C, Rule 17.52(b)(3), which will be referred to as the GO TEXAN wine rule for the purpose of this email. In November, Texas wineries, vineyards and industry professionals were contacted to comment on your proposal. At the conclusion of that comment period, it was determined the comments received were inconclusive and the Texas Department of Agriculture (TDA) was not able to make a decision to proceed with or suspend the rule-making process based solely on the information submitted. To assist TDA in gathering additional public input, a second comment period was opened and the proposed rule changes were published in the Texas Register in January. Constituents had 30 days to respond to the posting. In addition to providing you with a copy of all comments received during the second comment period, as you requested in your public information request, we compiled the attached chart and have included it for your reference. It contains a comparison of statistics related to both comment periods. As you can see in the chart, the majority of respondents were not in favor of requiring 100 percent Texas fruit in order to qualify for GO TEXAN certification as it relates to wine. Further, the nature of the comments received illustrated the grape production deficit faced by the current Texas wine industry, especially in years hard hit by extreme weather conditions. Additionally, as two-thirds of respondents supported a rule change of some type, this exercise has demonstrated the need for a change in TDA policies related to the use of the GO TEXAN certification mark on wine. To accomplish this, we will move forward in structuring agency guidelines on the use of the GO TEXAN mark to address issues raised during the comment period. Specifically, we will implement those ideas to limit the use of the mark on wine bottles based on the origin of the fruit. We are proud to support Texas grape growers and wineries and will look for ways to ensure fairness and accountability in this process while still acknowledging and supporting the Texas wine industry’s $1.8 billion contribution to the Lone Star State’s economy. I appreciate your dedication to this issue and thank you for the passion you have shown in representing Texas grape growers. We will continue to keep you in the loop on this issue as it progresses. If you have any additional questions, please contact me at (512) 463-8289 ormary.york@TexasAgriculture.gov. Sincerely yours, Mary York Administrator Marketing and International Trade Texas Department of Agriculture