After years of repeated attempts to open the state to wine shipping, Maryland wine lovers will soon be able to have wine shipped directly to their doors. Signed by the Governor today, the new law makes Maryland the second state this year — after New Mexico — to pass new direct wine shipping permit legislation. This flurry of wine shipping legislation comes after no new states opened to direct shipping legislation in 2010.
Two important factors paved the path to the passage of direct shipping legislation in Maryland. First, a local citizens organization, “Marylanders for Better Beer and Wine Laws”, kept pressure on the Maryland legislature year after year even though earlier direct shipping bills were defeated. Second, the Maryland Comptroller’s office released a Direct Wine Shipment Report late last year debunking many of the claims made by opponents of wine shipping concerning minor access to wine and harm that might come to local business as a result of wine shipments.
Though retailers were included in original versions of the direct shipping legislation, they were left out of the final language, perhaps in part, because the Comptroller’s Report did not advocate for retail-to-consumer shipping.
The new law takes effect July 1, 2011 and allows wineries to obtain a Direct Wine Shipper’s Permit for $200 (renew annually). Each licensed winery will be allowed to ship up to 18 cases of wine to a single delivery address each year and will be responsible for quarterly reporting and payment of excise and sales taxes on all shipments made into the state. Potential shippers now await permit application and instruction forms from the Maryland Comptroller, which could be made available any time. We will keep you updated as more information becomes available.
Following a very favorable report from Comptroller of Maryland Peter Franchot, and years of efforts by the constituent group Marylanders for Better Beer & Wine Laws, bills to allow direct shipments from wineries inside and outside of Maryland were introduced in both chambers of the General Assembly on Friday. According to Free the Grapes!, 83 delegates and 32 Senators have signed on as co-sponsors of the legislation, and the bill is also endorsed by Maryland Wineries Association and Wine Merchants Association of Maryland. Maryland is a felony state and currently one of the 13 states that prohibit offsite wine shipments.
House Bill 234 and Senate Bill 248 follow closely the recommendations of Franchot in his Direct Wine Shipment Report. The new $100 Direct Wine Shipper’s Permit that renews annually at $50 would allow licensees to ship no more than 24 9-liter cases of wine annually to any one consumer in Maryland. Licensees would be required to submit to the jurisdiction of the Office of the Comptroller and remit quarterly sales and excise tax reports. An interesting feature of the bill, as recommended by Franchot, is a prohibition on delivery of wine shipments on Sundays. Licensees would be able to ship wine via common carriers, who must also get a $100 Common Carrier Permit and file quarterly reports of shipments.
Based on the broad sponsorship and many endorsements, it seems likely that Maryland consumers will have access to direct wine shipments this year, although stranger things have happened in the legislative process. Winery direct shipping marketers might want to get to work on a business plan for opening up a brand new market for wine direct shipments in 2011.
When H.R. 5034 (also known as the Comprehensive Alcohol Regulatory Effectiveness, or “CARE” Act) was introduced on April 15, 2010, the opposition responded quickly and forcefully. Supplier organizations were united in their opposition to the bill, referring to it as the “wholesalers monopoly protection bill”. Even the California State Legislature issued a resolution, SJR 34, that urged Congress not to pass H.R. 5034.
Proponents of the bill, including the National Beer Wholesalers Association (NBWA) and the Wine & Spirits Wholesalers of America (WSWA) claimed the proposed legislation was necessary to protect state-based regulatory systems from “attack” (i.e., legal scrutiny under the U.S. constitution), claiming that “25 states have faced challenges in federal courts to their authority to regulate alcohol and their ability to maintain a licensed system of alcohol controls” since 2005.
Following months of intense debate, heated rhetoric, and an incredible amount of public relations and lobbying activity on both sides, the House Judiciary Committee did not schedule the bill for a hearing until after the August congressional recess. During the recess, Representative Bill Delahunt, lead sponsor of H.R. 5034, sent a letter to House Judiciary Committee Chairman John Conyers Jr., introducing new text in an what he terms effort to “perfect the language”, following “concerns about unintended [sic] consequences of the language as written”.
To help clarify the changes from the original version of H.R. 5034, we put together a redline document that highlights the revisions. The main change is the removal of section 3c, which established the presumption of validity and shifted the burden of proof in legal actions involving the regulation of alcoholic beverages. Like the original bill, the new version would immunize state laws that effect non-facial discrimination, such as capacity caps and in-person purchase requirements, if the discrimination were not proved to be “intentional”.
To better understand the revisions and the corresponding responses, we spoke with individuals from each of the tiers (the “three-tier system” includes suppliers, wholesalers and retailers) that are on the front lines of the debate.
Wholesaler organizations laud the new version as meaningful change. “While the proposed changes to the legislation address a narrower set of deregulatory concerns than the original legislation, it is certainly a step in the right direction,” says Karin Moore, Vice President and Co-General Counsel at WSWA. “The new version clarifies that the Granholm holding prohibiting facial or intentional discrimination against out-of-state producers remains the law of the land by incorporating the exact language used by Justice Kennedy in that landmark decision. The new language clearly and unequivocally confines itself to dormant Commerce Clause challenges, and addresses many of the concerns raised by opponents of the bill.”
Cary Greene, Chief Operating Officer & General Counsel at WineAmerica, sees broader implications. “There are many cases other than Granholm that elucidate how states can regulate interstate commerce in alcohol. As revised, 5034 would undermine or reverse dozens of court decisions. By scrambling settled case law, 5034 will cause years of re-litigation to try and figure out exactly what the new limits are. The fact is courts have not done anything to jeopardize core Twenty-first Amendment powers. State laws run into Constitutional trouble when they try to do something underhanded like fix prices or give an unfair market advantage to certain licensees or products. 5034 allows states to blatantly discriminate against out-of-state products without any concern for Twenty-first Amendment core purposes. From a policy standpoint, I’m not sure why that would ever be a good thing.”
“The problems with HR 5034 remain significant, despite the changes to the language,” says Tom Wark, Executive Director of Specialty Wine Retailers Association. “Discrimination against out of state products would still be allowed on a number of levels and consumers are bound to be hurt by this legislation. Significantly for retailers, HR 5034 would strip wine retailers and merchants everywhere in America of their protection under the Constitution’s Commerce Clause from discriminatory state laws. It has happened only one other time in American history that an entire industry lost its Constitutional guarantee of free and open markets based on the constitutional principle of non-discrimination. Wine merchants would be catastrophically disadvantaged by H.R. 5034.”
A hearing in the House Judiciary Committee will take place at 11:00 ET this Wednesday, September 29th. This is an important hurdle in the process of moving legislation through Congress. Expert witnesses will testify in front of the full committee on Wednesday, and many parties will also provide written testimony to debate both sides of the bill. Barring technical difficulties, the hearing should be available via live webcast. Click here to watch the webcast (RealPlayer required).
So, what are the chances that H.R. 5034 will pass? Well, it’s important to note that the bill has 146 (not an insignificant number) co-sponsors from both parties in the House. On the other hand, supplier organizations continue to be unified in their opposition (Click here to view the joint opposition letter issued by the Brewers Association, WineAmerica, Distilled Spirits Council of the United States, Wine Institute, Beer Institute, and National Association of Beverage Importers on the revised 5034). We hope to learn a lot more in the hearing on Wednesday.
If H.R. 5034 moves through both chambers of Congress (no companion bill having yet been introduced in the Senate) and is signed by President Obama, not much would change overnight. Despite numerous reports that it would mean the end of direct shipping, it would not change current state laws that allow direct shipping. It would likely be an uphill battle to completely repeal existing direct shipping laws in most states. However, H.R. 5034 would open the door in states like Florida, New Mexico, and Massachusetts, where the direct shipping laws are in flux because of court cases and Granholm issues, for new state laws that introduce non-facial discrimination such as caps on production capacity (proposed for the last several years in Florida and recently nullified as unconstitutional in Massachusetts) or in-person purchase requirements. It would also provide discriminatory options for the remaining holdout states, such as Maryland, if their resident consumers’ support for direct shipment should become effective. With potentially greater long-term significance, it would tilt the field decidedly against extension of Granholm’s nondiscrimination principle to interstate retailing by non-producing shippers and to interstate wholesaling.
The latest version of “Notes on Wine Distribution”, by R. Corbin Houchins, is now available. Release 32 includes updates on legislation, litigation and general discussions on available distribution channels for wine. This release includes substantial changes, including new sections on age and identity, facial neutrality, and logistical support services, as well as updates to state summaries in Arizona, Delaware, Kansas, Kentucky, Maine, Maryland, Massachusetts, Montana, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, Washington, and Wisconsin. Read about these and other updates that affect the way wine is sold and shipped within the United States.
If you are at all interested in the shipping and distribution of wine, this is an excellent resource that is well worth reading. You can view the most recent version of the document anytime by visiting the ShipCompliant Blog and clicking the link located under “Compliance Resources”, or by visiting CorbinCounsel.com and clicking on the home page link, “Notes on Wine Distribution.”
Click Here to View NWD Release 32
For the fourth time in the same case, TFWS, Inc. v. Franchot, a federal Court of Appeals has told the state of Maryland and its wholesaler-package store cohort that their price posting system conflicts with the Sherman Act, the nation’s premier antitrust law. As a federal enactment, the Sherman Act preempts inconsistent state law, pursuant to the Supremacy Clause of the federal constitution, absent a specific exception.
Maryland had indefatigably marched on, beating the drum for a 21st Amendment exception to federal antitrust law since 1999, when the suit began as TFWS, Inc. v. Schaefer. The latest rebuff, on 15 July 2009, repeats the teaching of the previous three appeals: “Not proved.” That ruling does not change the status of price posting in Maryland, because an earlier district court ruling to the same effect was not stayed on appeal. Presumably, the qualified abandonment of posting announced by the state in a 2007 bulletin continues in force.
TFWS is, however, more than a simple failure of proof. Deeper issues remain unresolved, at least one of which might, in theory, support an attempt by the unsuccessful appellants to obtain Supreme Court review.
To understand what is at stake, one has to consider three aspects of antitrust challenges to state restraints of trade in general and to the particular alcoholic beverage regulatory restraint known as “post and hold.”
First, it is basic antitrust law that a group of manufacturers or wholesalers who agreed among themselves to publish their price lists, to sell at no other prices, and to keep the list unchanged for 30 days would be violating the federal Sherman Act if they had any effect on interstate commerce. (Almost all wine business meets the interstate commerce requirement, and most states have “little Sherman Acts” without that requirement, so we can ignore the commerce issue.)
Second, it has been accepted antitrust law since the 1940s that states, acting in their sovereign capacities, are immune from federal antitrust law, on the rationale that our federal system could not operate if the central government could enjoin state exercise of governmental functions.
Thus, federal antitrust law allows a state to mandate conduct that, if done by individuals without involvement of the state, would land them in the federal pen. Maryland could, if it wanted, specify the prices at which wine is to be sold and require those prices to be posted and held in force for any period. That is “sovereign immunity,” and its failure as a defense in TFWS is an important aspect of the ruling to which we will return in a moment.
Third, if sovereign immunity is unavailable, the TFWS court recognized an independent potential defense, viz., that § 2 of the 21st Amendment (forbidding importation of wine contrary to the laws of the state) would have allowed the state to admit wine on the condition that it be sold in a manner contrary to federal antitrust law, if the state had proven certain preconditions. Its recognition of a 21st Amendment defense is, technically, dicta –i.e., commentary that is not required to support the decision, and therefore not binding as precedent on other courts. In other words, the outcome would have been the same if there were no 21st Amendment defense: the state lost.
So if price posting was state law, why did Maryland not have a good sovereign immunity defense?
Price posting laws are not pure state action because the parties setting the posted prices are private actors, not the state. If wholesalers set the price, and the state merely enforces adherence to it, the TFWS court, like courts that have looked at other price posting laws, classifies it not as state action, but rather as a “hybrid” of state and private action. Hybrid restraints of trade are subject to special rules in Sherman Act cases, as established by the Midcal decision in 1980.
The 4th Circuit applied the familiar two-prong Midcal test to Maryland’s system. One prong asks whether the substitution of regulating pricing in place of competition is an articulated state policy. The other asks if the state adequately supervises the prices posted to assure that the system does not deteriorate into simple private price-fixing. If the answer is no to either, it’s not state action, and no immunity applies. Like most cases applying Midcal to posting systems, TFWS found inadequate supervision and didn’t have to consider the policy articulation prong.
I have great fondness for the Sherman Act and cheer when it sweeps away restraints on trade in wine. Still, I have to admit uneasiness about the lack of post-Midcal explication by the Supreme Court on the boundaries of hybrid status. In the Midcal case itself, the state law required the private actors to engage in conduct that was necessarily an independent violation of the Sherman Act (resale price-fixing, at the time considered always illegal). It is not obvious that a posting system that requires each private actor only to select a price and post it is requiring an always-illegal act. On the other hand, that factor may not be necessary, as Midcal’s reasoning does not expressly limit the decision to systems that inevitably produce an independent Sherman Act violation on the part of the private actors.
Other courts, notably in the Miller case from Oregon, have bridged the gap by noting the opportunity for collusion, citing anticompetitive effects on the market, or (perhaps metaphysically) joining unilateral private acts with the known coercive power of the state to form the equivalent of a conspiracy. The recent Costco case in Washington State followed TFWS in picking up that approach, which seems reasonably well established, but thus far hasn’t been given a Supreme Court imprimatur.
A risk in an appeal in TFWS would be frontal attack on the Miller-Costco line of cases, with the objective of narrowing the prevailing understanding of Midcal and reviving the validity of posting laws like Maryland’s under the sovereign immunity doctrine. There is language in one post-Midcal decision supportive of that line of argument. Litigating the point would invite the long shot countermeasure of questioning the breadth of sovereign immunity itself, whose logical underpinnings in the Supreme Court’s 1943 Parker decision are of imperfect clarity, but which is deeply settled law, if for no other reason than age. It would be an intellectually stimulating debate, but one I’d readily forego for the sake of leaving the antitrust approach of Miller, Costco and TFWS undisturbed.
Entirely separate is the question of a 21st Amendment antitrust defense. As conceived by parties defending price posting, the defense would allow a state that failed to achieve sovereign immunity because of lack of active supervision nevertheless to maintain a hybrid system that turns private parties loose to violate antitrust law if the purpose is a recognized objective of liquor regulation, such as promotion of temperance.
One of the Midcal Court’s famous statements is that it was not deciding when “if ever” the states’ rights policy behind the 21st Amendment could outweigh the federal policy for competition expressed in the Sherman Act, which the Court has termed the Magna Carta of our economic liberties. It could duck that question because the state’s factual support for the law on those grounds had already been found wanting in a related case.
Thus, Midcal marks the beginning of a judicial snipe hunt for a defense that may not exist. To say that no 21st Amendment interest could be sufficient to justify direct contravention of fundamental competition policy embodied in the Sherman Act would be a profoundly controversial development in Supremacy Clause jurisprudence. It’s much less daring to rule repeatedly that the defense requires proof that is missing in the case at bar.
One of the unfortunate consequences of the Fourth Circuit’s recurring tutelage of the Maryland district court on the standard of proof is that prolonged disinclination to address the more fundamental question tends to lodge the idea that there must be a defense more firmly in the judicial mind. Formulation of the evidentiary requirements in TFWS has produced a kind of standard incantation for use by judges before invalidating a pricing law on Sherman Act grounds –wholeheartedly adopted, for example, in Costco.
As expressed in TFWS dicta, a 21st Amendment defense can be established if the evidence shows:
1) The state’s purpose is one of those protected by the Amendment.
2) The challenged law is effective in carrying out that purpose.
3) The state’s interest in the law, to the extent it is effective in carrying out the purpose, outweighs the federal interest in promoting competition.
Maryland maintained that the purpose of price posting was to make liquor more expensive, thereby promoting the objective of temperance. The court agreed that temperance is a legitimate 21st Amendment objective, and checked off item 1.
Most of TFWS was about item 2, effectiveness, and concerned how to measure relative prices between Maryland and neighboring states that did not use posting. Ten years of litigation failed to produce a sustainable finding that post and hold had a significant effect on temperance. Thus, the TFWS court did not have to reach the unwieldy issue of whether a temperance issue outweighed the policy of the Sherman Act (an area into which one may assume it had no wish to venture). The implication is that if the law had been effective, the district court would have had to receive and weigh some kind of evidence of the social importance of reduced liquor sales versus the public’s Sherman Act right to competitively determined pricing, a nightmarish prospect for all but the most fearless lower court judges.
One should not ignore opportunities to compliment one’s adversaries. In that spirit, I express continuing admiration of defenders of price posting for their ability to maintain a straight face while asserting that its purpose is temperance. Post and hold requirements are simply another method of reducing competition and thereby padding private profits, primarily in the middle tier. If a state wished to reduce problematic alcohol consumption by raising prices, it would increase its excise tax on frequently abused products, not throw a prize to industry members by attempting to grant them a spurious exemption from antitrust law. None of the states whose price posting laws have been invalidated has attempted to replace the stricken law with a system providing sufficient state supervision to meet the Midcal test or to return to court with proof of effectiveness under the TFWS test, and none has reported a resulting surge of intemperance.
If the “21st Amendment defense” to Sherman Act challenge remains in the realm of dicta, with its underlying factual requirements never proven, it may devolve to the status of mythical animal, doing no harm to protection of competition. Even so, however, the chimera would muddy analysis of our most important antitrust law and invite protracted judicial charades like TFWS. It would be a service if some judge somewhere would switch the bunny off for good.
by R. Corbin Houchins, CorbinCounsel.com
Maryland continues to be one of six states in which direct shipping is completely prohibited. In a previous post we reported that HB1260 and SB616 were favorable direct shipping bills in Maryland’s current legislative session. Both of these bills died in committee. If passed, they would have allowed permitted wineries and retailers to ship directly to Maryland residents. Though the bill was widely supported, the Licensed Beverage Distributors of Maryland argued that the bill would “hurt Maryland wineries, reduce distribution-related jobs in the state, hamper tax collection and make it easier for minors to obtain alcohol” (as reported in the Baltimore Sun), “It’s always a tough fight when a majority of people stand up for the common good against entrenched special interests”