This article was published in The 30 Second Wine Advisor on Friday, April 8, 2005.

Wine shipping: Court to rule soon?

The U.S. Supreme Court does not preview its plans for the benefit of mere mortals, but our informed sources are telling us that the court's long-awaited decision on the constitutionality of shipping wine and other alcoholic beverages across state lines is coming soon, perhaps as early as the first of next week. (Of course, strong rumor also had it that the decision was to have come this week, so what do our sources know?)

There's been a lot of excitement about this decision in the general media - and in Internet wine-chat groups - based on the assumption that the Supreme Court might lift the barriers that have made it difficult to impossible for wine consumers in many states of the U.S. to buy wine direct from the producer or from wine shops in other states.

My suggestion: Don't get your hopes up. I'm not a lawyer, and I don't even play one on TV. But even a casual examination of the specific issue before the court, in three cases from New York State and Michigan, suggests that whichever side wins, the decision is likely to be narrowly construed.

That issue is simple: Do protective state laws discriminate against out-of-state wine producers and stores by treating them disparately from wine producers and merchants within the state? The state laws under challenge explicitly grant to in-state producers or merchants the right to ship wine directly to consumers: A right that the state denies to competitive producers and merchants located outside the state.

Proponents (including the powerful and well-heeled wine and liquor distribution lobby) argue that the 21st Amendment, which repealed Prohibition, permits this because it explicitly gave each state unlimited power to control "the transportation of alcoholic beverages" within its borders. Opponents (including many small California wineries and the organizations that represent them) argue that there's no constitutional exception to the established legal principle called "the dormant commerce clause," which forbids discrimination in interstate commerce.

As much as wine enthusiasts like most of us might desire it, it's hard for me to see the court forging beyond this narrow issue to declare that states may not in any way regulate transactions between those who sell alcoholic beverages and those who want to buy them.

Look for a ruling that states with laws like New York and Michigan must eliminate disparities between the laws governing shipping for in-state and out-of-state merchants ... a problem that those states could as easily resolve by denying all direct wine sales to consumers (as many states already do) as by permitting all such sales. But don't count on the Court directing all states to permit interstate wine sales. This possibility - essentially overturning the 21st Amendment in its entirety - isn't even on the table for discussion.

For more detailed information on this issue, the cases and the players, see my previous articles, "Wine shipping comes to court," in the Dec. 6, 2004 Wine Advisor, and "Supreme Wine Decision," in the June 4, 2004 edition,

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