Is this the most 1st World Problem ever posted here?
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The heck with NFC chips, what they need is a locking capsule for each bottle that requires biometric data to open! 
And only if it’s implanted under the skin.
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A couple of points.
- The language in the NFC chips and relating to NFC chips does not carry any legal or property rights or any legal significance, frankly. Any person acquiring a bottle in any jurisdiction is absolutely free to sell it, drink it, use it (including in a mimosa) however they please. Under various legal regimes (including the UCC and various European legal regimes) it is incredibly difficuult to impose restrictions on use or sale of goods without an actual contract, and this doesn’t come particularly close. The producer retains no ownership rights (and doesn’t feel they do).
- This does not raise privacy issues, even under GDPR. The NFC chip reveals location, at most, which is not protected data, especially since it’s both anonymous (the chip cannot determine one’s name) and what the location means to the individual (the individual may be scanning the bottle at home, at a restaurant, on holiday, etc.). Given the domaines that pioneered this technology, this was looked at by lawyers (that is not conjecture).
- That said, the below is fundamentally wrong:
Property rights give someone the right to sell (or dispose of an asset), but spending money on a bottle of wine or any other asset does not bring with it freedom from consequences. No legal property rights can confer that, regardless of NFC chips or anything else. A customer who posts negative videos about a company’s product is free to sell those products, but is likely to lose allocations. It is the same here - anyone buying allocated wine (whether with or without NFCs) is free to resell that wine at market prices, but the merchant/winemaker is also free not to sell wine to that customer in the future.
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On a serious note, while I understand why posters would be focused on the individual allocation aspect - the goal is to get the wine into the hands of individuals who will drink it - that is not the primary goal of the NFCs. Scanning of the NFCs is too irregular and unpredictable (it is voluntary!) for it to be meaningful on an individual consumer level. The real benefit to a Domaine is tracking shipments across markets; the NFCs are scanned at certain ports, and there are only a few large ports that handle the majority of wine shipping (New York, London, Hong Kong, Singapore). That gives the Domaines an efficient way to determine monitor grey marketing and tell if a large parcel of wines intended for one market are ending up in another.
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Disabling the NFC chip is not as hard as one might think, but the natural question a consumer would (should) ask is whether the bottle is fake if the chip is disabled. Plus, for Selosse, there would be no way to know the disgorgement.
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It clearly can Greg - I don’t know if you saw the Russell shared:
This is the text (translated to English) that retailers have to sign up to for one WID producer:
“Finally, each of our bottles will be fitted with WID traceability technology; we would ask you to please use this technology to track the bottles you sell to your customers. Rest assured that, without your consent, we will not have access to your information and your customer records will remain confidential. If we detect any irregularities regarding the destination of the bottles allocated to you, we will provide you with the bottle numbers so that you can track down any unscrupulous customers. We would like to remind you that you are responsible for distribution and, in particular, that the bottles allocated to you must not appear online or at auction. This technology will enable you to identify customers who do not honour their word; you will have evidence of this and will be able to remove them from your customer lists. You will then be able to offer more bottles to your trustworthy customers and take on new ones.”
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What’s you concern with this?
If it’s GDPR related, I imagine you would need to have the customers’ consent. Like written. You are keeping a record of the customers’ data with the possible intent of using it for that specific reason.
I wouldn’t know if it’s allowed to restrict customers in the first place.
Almost all modern POS systems track what you sell to who. I’d say that’s my data not the customers.
If I get an allocation of say a dozen Selosse, I can obviously choose to sell it to specific clients and not others.
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I imagine if MacDonald said they were gonna NFC chip their wine, people would similarly be up in arms. The argument would be, I drank it early on, can’t drink it all now, have been a supporter, and deserve to continue to be a supporter. But what if MacDonald’s goal was to ensure they were selling to folks who were drinking it in exchange for low primary market pricing (since they know secondary is nuts). I think a producer has a right to do whatever they want with their product. You don’t have to buy it if their strategy upsets you. I imagine the only people who are upset are people who have a tendency to want to profit for their own good.
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That alone is fine. If you start to combine that with data from a producer, actual demands of what may or may not be done after you sold them the bottles…
Edit: just do search and specifically mention within eu. What your producers might be asking and demanding from you could become very expensive in fines.
Yes, location isn’t a GDPR issue. GDPR concerns customer data - no actual customer data is being provided to the producer here; all the NFC language states is that the producer will provide the retailer with location information with respect to specfic bottles - it is up to retailers/agents to track the consumers (if they want!). The retailer obviously has that information, since the retailer sold the bottle in the first place. The producer never asks for the customer information because it doesn’t interface with the customer directly. The producer isn’t interested in hunting down individual consumers - the whole point of the NFC is to cut off retailers/agents, not customers.
This has been reviewed by counsel that practices on GDPR issues. I have colleagues who do this for a living and I have to deal with these issues too because of some of the work that I do. You are not the first person to consider whether GDPR may be implicated here, you may want to consider being more circumspect in your analysis.
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This is what Russell as a retailer received: “we would ask you to please use this technology to track the bottles you sell to your customers.”
If you know the GDPR well enough to say that’s not an issue, I don’t have the knowledge to argue that, I don’t claim to be an expert on the subject - expressing cautions. However if a German customer for example gets asked why bottles a year later ended up in Denmark. He would rightfully wonder why retailer Y is asking about it and how do they even know, and can connect it. Maybe it’s not a GDPR issue (?) - above my pay grade in this context.
If “the whole point of the NFC is to cut off retailers/agents”, please consider that if we are talking about sales within EU markets (which is what I mentioned), then that’s obstructing free movement of goods.
The latter is something I have quite some experience with from commercial side with counselors. The maximum penalty amount are eye watering, and the regulations are quite clear, though I guess with alcohol products there could be local market exceptions.
In reality a producer can of course use soft measures to influence.
I love this forum (I mean, I don’t) - my favorite part is people posting “I don’t know anything about X” right before offering forceful uninformed opinions on the subject.
It’s not a GDPR issue and it’s not an obstruction to the free movement of goods, because you can sell the goods to whoever you want with no restrictions. The consequence to the initial purchaser (and not any other purchaser) is a potential loss of future allocations, but there is no contractual right to future allocations anyway! At no point does the NFC restrict any holder from selling any bottle. It’s the very first point I made! The right to movement of free goods covers restrictions on sales, it does not require producers to sell to anyone who wants to buy - producers can choose to sell their wines to whoever they want, including those retailers/agents who sell to customers who don’t resell to auctions/grey market.
As I’ve said, I’ve spoken to the people that looked into these issues and work with these issues! And I keep point out why it’s not a problem. But, I defer to your expertise.
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If you are so in to GDPR then you should also understand that it’s about what you can conclude by combining the data you collect. It’s indeed questionable that x amount of companies on the chain can track exactly what Greg_K buys and drinks without Greg_K consent to do so. If you think about the policies about tracking cookies and consent required to use them you get the point.
Now another matter is how they use the NFC data, how long they store it, do they enrichen it from other sources and if so with what and where etc. But I take from your feedback that you do know all is legit so it’s clear and we all can sleep well then and I can say I like this forum 
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I’m sorry to say that you’re mixing up what the main issue is, that I pointed out - stop selling your products to a retail, distributor or importer with the reason being reselling the products. You know like sending a message like we will not allocate wine to anyone selling them in a market, to other retailers. That’s breaching the EU competition regulation because every country in EU is counted as a single market.
AND then for whatever other reason you stop selling the wines is when you as a producer, should the reseller decided to throw the shit and it hits the EU fan, it will get nasty.
The GDPR is a separate point which I don’t think you got straight, especially reading your response.
Edit: if your friend and his counsel are not clear on the first point, I think it’s well worth getting a second opinion.
My experience is from another industry with selective distribution setup, I’ve ready many of the legal text (not a lawyer), discussed with internal legal teams who in their turn hired the legal experts on the matter.
The NFC tracks location. The language makes it clear the producer isn’t asking for information from the retailer.
I could say that you, Mikael, don’t understand the issue because you’re badly confusing the issues regarding single market distribution and restraint on trade generally with individual decisions not to sell to a distributor. The issue here is the manner of resale, not where in the EU the wines end up.
I am thrilled that you you know more than both the lawyers who were consulted on this question by the producers that launched NFCs and my competition colleagues (with whom I’ve had to deal with this issue for an unrelated work matter a few times). I will alert them all that they are actually facing very significant EU issues and that the legal advice we’ve been providing is all wrong because Mikele has…read many of the legal texts.
Mikael, amazing. You are the world’s leading expert on EU law, without a doubt. Clearly more so than any of my colleagues.
EDIT: I will admit, I laughed out loud at “if my friend and his counsel are not clear on the first point”, it’s is very funny.
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Glad I could help you to a happier Saturday Greg!
Not sure it’s your colleagues who need the help - all I know is that someone told you something, which you seem to have blended in to some sort of GDPR/EU competition soup. Exactly the type of voice we need more of here talking with authority, bravo.
Bon appetite and enjoy your meal in Gordon corner!
This is the most entertaining part of most forums! 
Lol, there is nothing legally dubious about the use of NFC chips, or in setting strict rules about reselling. If a producer sees that bottles allocated in one country end up in another they are fully within their right to cut that importer off, or ask them to track the bottles to the purchaser and cut them off. Or they can decide to charge that importer more than they charge others. This happens regularly and is completely above board. It’s a sensible, even laudable practice. Weird that this thread has spun out of control based on total nonsense…
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Not true in EU, perhaps ok in US. It’s possible to change for other reasons.
In EU, which is a single market, retailer in EU country S, having products sold in EU country D, is considered as sales in the same market (generally). There are exception and there might be special conditions or circumstances depending on contract and distribution model (between the parties - producer and the distributor/retailers).
I’m not referring to sales from an EU market to outside of EU.