Customs definition of commercial importer

Sepulchritude Forum: The Absinthe Forum Archive Thru March 2002: Archive thru February 2002:Customs definition of commercial importer
By Tabreaux on Friday, February 15, 2002 - 11:46 pm: Edit

Either I am having déjà vu or we’ve been through this more than once before.


The ATF states:

"….individuals who import alcoholic beverages for personal use on a repetitive or continuous basis, may be required to obtain an importer's basic permit and possess a certificate of label approval for these imported shipments. ATF and the U.S. Customs Service have concurrent jurisdiction in the area of personal use importations of alcoholic beverages."

(and)

"….the determination whether or not a shipment is for personal or commercial use cannot be decided solely on the size of the shipment but must be determined on a case-by-case basis considering the circumstances surrounding the importation. However, the size of the shipment may give rise to a question resulting in the need for an investigation by Customs or ATF."

Additionally, the ATF language specifies that even where personal gifts to friends, neighbors, or relatives, etc., are concerned, the distribution of alcoholic beverages ‘connected’ with the solicitation of orders for, or the sale of, such products constitutes commercial use.

Equally noteworthy are various and sundry specific federal legal requirements that must be met by any liquor intended for sale and distribution. According to the ATF, “Sale and distribution includes sampling or any other distribution not for sale.”

In other words, retain a good lawyer.


And now for for the clincher……


U.S. Customs states:

"The importation of Absinthe and any other liquors or liqueurs that contain an excess of Artemisia absinthium is prohibited."

(and)

"Prohibited means the item is forbidden by law to enter the United States, period. Examples are....illegal substances like absinthe and Rohypnol."

By Don_Walsh on Friday, February 15, 2002 - 08:19 pm: Edit

I think ATF will consider 6 bottles a week as 'engaging in the business' and importing for catering as 'engaging in the business' and require you to have a federal liquor importers license and any/all Mass. and Cambridge licenses and permits.

And when they see it is absinthe -- you will have to disclose in writing what you import under penulty of perjury -- they will deny the importation and seize what is in Customs.

But, I wish you luck.

By Lmarchegrisiste on Friday, February 15, 2002 - 07:47 pm: Edit

When I was growing up and in school the Customs would let me come in with a six box of fifths a gallon of booze.

This was even as a teen. I wasn't allowed to buy it or drink it but I was permitted to carry it on board then deliver it to an adult. There were no taxes charged me by Customs. I only travelled every three or four months.

The frequency and amount of booze I can ship in are in question. The State of Florida case on the Customs site points to a six bottle box a week. I am not sure what they wish to have readers infer as there is no mention of federal precedent.

As for my purpose in 2002 I hope to use it in catering rather than sell by the bottle or drink. The cost of the catering consisting of service and product combined. I consider it a part time activity with a limited scale at parameters not yet determined.

I feel that such an introductory service won't work with either Hills or LaBleue. I get the impression that with one the category would not be interesting and the other is too expensive. A mid market product is needed.

I am interested to find so much forum activity with such a small membership. There is a lot of interest in absinth from even more interesting people. I hope to bring something like this to Cambridge the banks of the Charles in real time.

By Don_Walsh on Friday, February 15, 2002 - 05:49 pm: Edit

As the liquor laws on the federal side are originally tax laws, they are 'non-intent' violations which means that a prosecutor need not establish criminal intent ('mens rea') as part of his burden of proof.

Non intent laws are rare and scary things.

It's a 'gotcha'.

By Tabreaux on Friday, February 15, 2002 - 03:11 pm: Edit

It appears to be the joint discretion of both U.S. Customs and ATF as to establishing the intent of the 'importer'. In any case, it's illegal any way you slice it.

By Lmarchegrisiste on Friday, February 15, 2002 - 01:01 pm: Edit

The state of Florida to which the Customs site apparently refers seems to have a personal import limit of a six box of fifths or .700 liter bottles weekly.

By Wolfgang on Friday, February 15, 2002 - 06:44 am: Edit

Just to give you an idea about Canada's law, I read that the fine for illegaly selling alcohol is 25000 $. Not a good idea.

By Lmarchegrisiste on Friday, February 15, 2002 - 01:25 am: Edit

This is why I see the opportunity from this end as catering parties rather than selling bottles or drinks.

I went to muni ABC and was told that catering private parties at residences and businesss did not require a liquor license. If I wanted to open my doors as a bar to the public I would have to go before the local board and a public hearing followed by another before the state board.

In terms of rum from past experience I know that it is possible to invest in a marketing partnership with an established licensee. They handle the physical product and pay a percentage of sales in exchange for marketing expenses.

The maximum amount of liquor that is permissable for private import imposes a ceiling on volume. There is then a maximum fee that the average person would pay to host a given number of people. This would then be a gross from which cost of product would be subtracted leaving cost of personal labor and/or profit. Naturally I would attribute it to labor.

The cost of shipping is a sensitive issue on a limited volume of imports.
Commercially imported complimentary products available from stores at a price reflecting a lower cost method of transportation becomes important. This could be cocktails but the traditional process for absinthe is a drip.

If catering to the average host the higher the cost of the personal shipping for Absinthe and the lower the quota for booze imports the more compelling combination with pastis is.

By Don_Walsh on Thursday, February 14, 2002 - 07:59 pm: Edit

Yeah. It isn't up to Customs. All Customs does it kick it over to ATF, if they decide that the amount of liquor (any liquor, incl wine and beer) is more than likely for personal consumption, they will not release the liquor till the traveller (or recipient by USPS or common carrier) obtains an ATF import license.

Needless to say, ATF will not grant such a license for absinthe.

You ought to be aware that 'engaging in the business' (a term of art, deliberately vague) of importing, selling or manufacturing alcoholic beverages without a Federal license and tax stamp is a serious federal felony.

Furthermore, ATF won't issue such a license unless you also comply with the local and state ABC regulatory requirements, licensing, zoning, tax registration, etc.

And once you have all that, you can only sell within your own state. Other than wholesale.

And obviously, absinthe isn't allowed, anyhow.

Back to FDA, plus ATF, plus local/state ABC.

Mailing liquor is a violation of postal regulations, so add the Postal Inspectors to your headaches.

So, it behooves one to stay below whatever the Customs threshold might be, and as far as I know they aren't saying.

I have heard various rules of thumb but I do not believe it is appropriate to discuss them here.

And I DO NOT advise anyone to engage in the business of reselling liquor within the US or import for resale.

You are fairly safe as long as you buy from abroad for your own use.

As soon as you start selling you are extremely vulnerable. These are non-intent Federal felonies.

Not because it's absinthe, just because it's booze.

By Lmarchegrisiste on Thursday, February 14, 2002 - 07:41 pm: Edit

I was checking the site for an indication of a threshold where they join FDA in doing more than forfeit of goods. The closest thing I found on the website was a reference to a Florida court case mentioning 63 gallons a year. Any help here?

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