Distribution of Wine in 巴西

Brazil´s wine market in 2021 experienced a growth of 38,8% in term of volume and 44,4% in value, reaching 489,4 million of liters. Imports increased 4,8% in volume and 11,8% in value in comparison to 2020 which was already a record, reaching 17,6 million of 9-liter boxes, with total value of USD 467,7 million.

Reports show that such increase occurred not solely on volume, but also on aggregated value of the imported wines, to demonstrate the increasing awareness of Brazilian consumers. The leading countries exporting to Brazil in 2021 were: (1) Chile, (2) Portugal, (3) Argentina, (4) Italy, (5) France, (6) Spain and (7) Uruguay.

It is advisable that producers with the intention to distribute its products in Brazil should protect their trademarks by means of appropriate registration in Brazil. Despite bad faith filing of trademarks by third parties (“trademark squatting”) is actually quite content, it is still advisable to register the trademarks even before the products enter the Brazilian market.

There are two procedures available in order to register a trademark in Brazil:

• file the application directly before the Brazilian Patent Office (INPI); or
• register an international trademark before the WIPO and request its extension to Brazil, within one year as of the date of initial registration.

Even though Brazil is progressively digitalizing the administrative processes, the trademark registrations still require a fair amount of time (up to 36 months), but the priority still gets acquired at the moment when the request is filed. The registration has a duration of 10 years and may be renewed.

Counterfeiting of wines is not a common practice in Brazil, while it occurs frequently with whisky and other spirits.

Seal of certification of origin or of indication of geographic typicity, when applicable, is a well-regarded addition to the product. Further information about history, production methods and biodynamic wines are also very appreciated by Brazilian consumers.

Labeling requirements for the sale of wine in Brazil are as follows:

• brand of the product;
• alcoholic content;
• volume of the bottle.

On the back of the bottle, the following information must be shown, in Portuguese wording:

• type of wine: classified pursuant to the alcoholic graduation and residual sugar level;
• list of ingredients (mainly fermented grape must be obtained from fresh grapes), including preservatives, country of origin, name and address of the producer and the distributor;
• name of the importer, address, Federal Tax ID, registry of the importer with Brazilian Agriculture Ministry;
• country of origin of the product;
• vintage.

Brazilian law provides specific mandatory wording, positioning of information and codes. To avoid any potential issues, it is advisable to consult a local importer before shipping the products in order to avoid additional costs as additional data or modifications may be required at customs inspection.

All foreign wine producers and exporters need to register the products with the Brazilian Agriculture Ministry.

The wine shall be certified with a Certificate of Origin and Analysis (COCA). The origin certification shall be signed and stamped by an official body from the country where the wine was produced. The analysis shall be signed by a previously certified laboratory for analysis, listed in the database of the Brazilian Agriculture Ministry.

Upon arrival in Brazil, a counter proof shall be submitted for comparison to the data provided with the COCA, in order to confirm same conditions as by the time of shipping from its origin. If divergences are detected, the wine may need a relabeling stating the results of the comparison between the original analysis and the counter proof. As a result, the Agriculture Ministry shall issue the Inspection Certificate (CI), allowing the importer to sell the wines within the Brazilian territory.

Certificate of Aging Time, certificate of typicity or geographic area shall be obtained to corroborate these elements.

Import of bottles with volumes of more than 5 liters is not allowed. Single importation of small volume (up to 12 liters) is exempt from the Agriculture Minister authorizations. Importations of larger volumes (above 12 liters) for exhibitions, commercial promotion, tasting events and competitions and for own consumption need authorization but can be made without the certificate of analysis and origin.

In order to undertake a smooth process, it is advisable to have all requirements verified in conjunction with the importer in order to avoid further delays.

Note that any inconsistency will likely result in the cargo to be retained at customs. Even if these costs are to be supported by the importer, the wines may suffer from exposure to risks (excessive sunlight, heat) if not properly stored, jeopardizing the quality of the product.

All detailed requirements and registrations with the Ministry of Agriculture for the production and import of wines is stablished under a specific Internal Normative Ruling nº1/2019(“NORMA INTERNA DIPOV/SDA Nº 01, DE 24 DE JANEIRO DE 2019”).

It is important to acknowledge that the taxation of imported wine in Brazil is steep, reaching 70% over the final selling price.

For the purpose of estimated tax impact on the import of wines, please find the applicable taxes below:

Custom Duty Tariff – import tax (“II”) - 27%: calculated over the declared value of the goods. Such tax is exempt for Mercosul products (Argentina, Chile, Uruguay and Paraguay).

Tax on Industrialized products (“IPI”) - 10%: Federal tax calculated over the declared value of the goods. Such tax is assessed to all products.

Social Contributions (“PIS/COFINS”) - 9,65%+2,10% [11,75%]: Federal tax calculated as a value added tax, but in view the importer is the first participant in the distribution chain, the amount is calculated over the declared value of the goods.

Value added Tax (“ICMS”) - 25%: State tax, collected by the state in which customs clearance is made. It is calculated as a value added tax, but in view the importer is the first participant in the distribution chain, the amount is calculated over the declared value of the goods. Furthermore, in most states, the importer is deemed as the substitute for the entire distribution chain and, as such, the calculation basis is estimated and determined by the state tax authority.

In order to clear customs, the importer needs to obtain the CI referred to above.

Year after year, Brazil is also growing on online sales of wine. Supermarkets are still leading sales in volume, but e-commerce has shown vigorous growth with online shops such as Evino.com.br (www.evino.com.br), wine.com.br (www.wine.com.br) along with a wide array of wine clubs. Traditional importers of more sophisticated wines have also structured their e-commerce platforms, such as Mistral (www.mistral.com.br), World Wine (www.worldwine.com.br) and Grand Cru (www.grandcru.com.br), that was acquired by Evino in 2021.

Considering the complexity of import procedures, taxation, dealing with commercial promotion, storage and logistics and the already established channels, entering directly in Brazilian market may be a challenging venture.

The usual model for selling wines in Brazil would be a distribution format, having the importer working as a distributor. On the other hand, the definition of a strategy – volume with small margin vs boutique wines with added margin, is crucial in determining which channel to go for.

Below you may find our main tips for negotiating a distribution contract:

• finding and checking the importer. Securing a trustworthy local partner is paramount for any distribution endeavor. Besides verifying the knowledge on the applicable market and reputation, it is important to make a commercial and legal background check of the importer (reputation, focus, strategy consistent with the producer plans in Brazil, fiscal good standing, status of any identified judicial claims, consumer complaints, compliance with governmental authorities, especially Agriculture Ministry) is highly recommended. Most information is publicly available but consulting with professionals will make this preliminary check faster and safer;
• validity of Contracts in Brazil. Private contracts are valid with the signature of the parties (authorized signatories) and, to expedite judicial enforceability, the signature of two witnesses. The contract can be drafted and executed in bi-column format, Portuguese and English (or any other language) to avoid public translators’ costs. Notarization of the signature of the legal representative of the Brazilian importer in contracts is not a necessary measure for validity of the contracts, although it is a recommended measure. E-signature is also valid in Brazil and recognized by the Courts;
• e-commerce. Despite the geographical extension of the country, the wine market is still concentrated in the Brazilian big cities (São Paulo represents around 30% of the wine market). The e-commerce channels are allowing the wealthy consumers in second tier cities the opportunity to conveniently receive wines with competitive prices;
• exclusivity. Is commonly demanded by the importers, it guarantees their control over the distribution. A seamless online and offline strategy, in order to avoid conflict of interests among different players in the distribution network is a recommended practice;
• applicable law and jurisdiction. Brazil is a civil law system, with codified laws and statutes. Potential indemnification for a breach of contract is generally based on the effective losses suffered as a consequence of the breach. Liquidated damages or ceiling for indemnification are commonly accepted limits for the calculation of the indemnities to be paid by one party to the other. It is worth mentioning that Brazil is also signatory to the United Nations Convention on Contracts for the International Sale of Goods – CISG, which applies unless expressly opted out in the sales contracts.

Depending on the size of the operation, it may be convenient that the distribution contract contains an arbitration clause for the disputes between producer and importer/distributor: this allows a swifter procedure, with knowledgeable arbitrators and has the benefit of confidentiality. It is also important to inform that Brazil is a member of the New York Convention of 1958 and the enforcement of an international arbitral award is, in most cases, easier and faster than the process of recognition of a foreign court decision. If the parties wish to have the seat of the arbitration in Brazil, Brazilian law would be the most convenient law to choose.