New tactics by Distributors/More shipping litigation

It ain't over 'til its over. Apparently the distributors are slipping some new terms into legislation following the Supreme Court decision in Granholm. They either require that the buyer buy the wine in person at the winery that ships it to them, or put a limit on the amount of wine a winery can produce, say 20 or 30,000 cases, in order to be eligible to ship.

http://www.law.com/jsp/article.jsp?id=1170324164373#

It ain't over 'til its over. Apparently the distributors are slipping some new terms into legislation following the Supreme Court decision in Granholm. They either require that the buyer buy the wine in person at the winery that ships it to them, or put a limit on the amount of wine a winery can produce, say 20 or 30,000 cases, in order to be eligible to ship.

http://www.law.com/jsp/article.jsp?id=1170324164373#

Many of these requirements are already laws that have been passed in a variety of states. What's happening now is those laws are facing legal challenges.

Hate to blow my own horn, but I--and others--predicted this would be the result of that ruling by the Supremes. The judges did their usual thing: they passed a narrow ruling leaving wide ambiguity.

I'll say it again: law suits will be ongoing until the 21st Amendment to the Constitution is amended to bring it into compliance with the Dormant Commerce Clause, which would mean preventing states from creating laws and hurdles to protect a three-tier "monopoly" system of sales and distribution.

I think the in person clause is just once... meaning you need only visit the winery and subsequently you can order by phone or web to your heart's content.

Uncertain but I read on a Hawaiian wineries site and that was the case there.

I am sure there are many variations, with the Distributors trying for as much as they can politically get in any given state.

OW, the shipping to yourself from the winery has been struck down, at least for Kentuckians it has. And I would think if it is not legal here it is not legal anywhere. Since you have a fondness for such things, click on the link below.

http://indianalawblog.com/archives/2006/12/law_federal_jud_3.html

I am sure there are many variations, with the Distributors trying for as much as they can politically get in any given state.

And this is a surprise....why?

At the time of the orginal ruling by the Supremes, I recall Robin writing a very long and detailed report on the ramifications, and predicting that there would be an absolute flurry of court cases in every single state and federal venue.

I'd expect nothing less from the distributors and their organization/lobbying forces. They are businessmen, and focused entirely on protecting their business, after all. Not doing anything any of us wouldn't be doing if we were in the same role (saintly protestations aside ).

OW, the shipping to yourself from the winery has been struck down, at least for Kentuckians it has. And I would think if it is not legal here it is not legal anywhere.

It doesn't follow that if it's not legal in Kentucky, it's not legal anywhere. Individual states have very wide latitude in formulating their wine regulations, and they vary enormously from state to state.

What really ought to be done is to pass a new amendment to the Constitution striking the language in 21st amendment that exempts liquor from the commerce clause. But I don't think we'll see that happen anytime soon. The wholesaler lobby is of course against it, so are the neo-prohibitionist Puritan "liberals", and so are a lot of temperance-minded Christian conservatives.

On the other hand, Costco and other large retailers with deep pockets could successfully fight the issue (read: buy a sufficient number of legislators) on a state-by-state basis.

-Paul W.

Bob, thanks for the info on the Kentucky case. I will try to find it.
There are enough variations, state to state, in the adopted response to the Granholm decision that the result in one state may not apply in another, and we have different issues here. But you are right, I like to keep up on things like that.
And Hoke, you are right. No surprise. They are protecting their interests. The difference is, we are protecting a legitimate interest - our right to over-indulge in incredibly expensive fermented grape juice. Their interests are only to earn a living.

we are protecting a legitimate interest - our right to over-indulge in incredibly expensive fermented grape juice. Their interests are only to earn a living.

See, OW, that's where I'm conflicted: I want to both over-indulge AND earn a living.

Balance is tough. So sometimes I carp at how damned expensive this wine stuff is, and other times I'm out there trying to convince people they should happily be paying the prices for it. I figure it all comes out even in the end that way.

[Robin Garr]

OW, the shipping to yourself from the winery has been struck down, at least for Kentuckians it has.[/url]

Bob, is that what you meant to write? As I understand it, federal judge John Heyburn struck down the state law that would have gone into effect in January, leaving Kentucky with <i>no</i> shipping restrictions, at least until such time as the wholesalers take their shopping list to the legislature.

I maintain that until a true challenge to the 21st Amendment is mounted, this is all a massive waste of the people's money and a splendid display of lobbying, political morality peddling, court obfuscation, and general all around American know-how--know how to make one interest happy over another, for a price...

It doesn't follow that if it's not legal in Kentucky, it's not legal anywhere. Individual states have very wide latitude in formulating their wine regulations, and they vary enormously from state to state.

What really ought to be done is to pass a new amendment to the Constitution striking the language in 21st amendment that exempts liquor from the commerce clause. But I don't think we'll see that happen anytime soon. The wholesaler lobby is of course against it, so are the neo-prohibitionist Puritan "liberals", and so are a lot of temperance-minded Christian conservatives.

On the other hand, Costco and other large retailers with deep pockets could successfully fight the issue (read: buy a sufficient number of legislators) on a state-by-state basis.

-Paul W.

Paul, I didn't intend to imply that I am so naive to think that because one Federal judge said Ky's law was illegalthat it made it so in all other states. No more so than the Supreme Court's ruling in Michigan and New York did. I do hover think that Ky had covered the bases pretty well in their law, and the stance on shipping from within the state, that it provides almost a textbook for other states to follow. Now that has been struck down, I am sure that other states will follow. I have one more cause of fear though. Now that the Ky Legislature is back in session they can change the law to obviate the Judge's ruling if they so desire. So you are absolutely what is need is a Constitutional change. About deep pockets by large retailers like Costco is also true, but that also is not going to happen unless they can be shown that it is in their financial best interest.

Thanks for the update, OW. Those two provisions would improve the sitch in New Jersey, especially if it takes only one visit to the winery, and I'd be able to thereafter buy from the winery.

The shipping rules are so various that what's a narrowing in one state is a major improvement in another -- from the point of view of the consumer.

Thanks again, Bob

Bob, is that what you meant to write? As I understand it, federal judge John Heyburn struck down the state law that would have gone into effect in January, leaving Kentucky with <i>no</i> shipping restrictions, at least until such time as the wholesalers take their shopping list to the legislature.

Robin, I may not fully understand the legalese, but the very first sentence in the report says "LOUISVILLE - Out-of-state wineries can ship their wares into Kentucky, even if a customer buys the wines online or over the phone, a federal judge ruled Tuesday." So, I am assuming that this means that I can legally call a west coast winery and buy wines for shipment to me in Kentucky, and they can legally ship them to me. I think I made a poor job of saying what I meant to say though. I did mean to say that what was struck down was the requirement to ever visit the winery in order to get legal shipments. I will respond to OW to make myself more clear. Thanks for waking me up.

OW, I apologize for not making my meaning more clear in my first response to your post. What I meant to say was that the requirement to visit the winery and ship to myself has been struck down. Also in the URL I included to my previous to you has an embedded link to the blog, which has an embedded to the brief (or whatever those things are called. Here it is again. I have now added a second URL which will take you directly to the 36 page opinion.

http://indianalawblog.com/archives/2006/12/law_federal_jud_3.html

http://indianalawblog.com/documents/kentuckywine.pdf

[Robin Garr]

I did mean to say that what was struck down was the requirement to ever visit the winery in order to get legal shipments.

Ah, okay, Bob, we're on the same page now. In your first post, it seemed to me that "<i>the shipping to yourself from the winery has been struck down, at least for Kentuckians it has</i>" implied that Kentuckians could NOT ship to ourselves from the winery. Actually, I'm not sure if the law that Heyburn struck down involved that aspect at all ... that was an administrative ruling handed down to clarify the old felony law, while the new law - the one that Heyburn threw out - would have required ALL sales to Kentuckians go through the three-tier system. Happily, that's dead.

And of course it still comes back down to the reality that Kentucky has never actively enforced any of these laws.

Got it, Bob. Thanks.