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Caps Off to Dolan’s Intentions

In October of last year, wineries began shipping directly to Ohio residents under a new direct shipping permit law. When the provisions of the law in Ohio were first announced, one of the major subjects of controversy was the capacity cap, which only allows wineries that produce less than 150,000 gallons annually to obtain a permit. Capacity caps continue to be a subject of controversy in all the states that use them (currently Arizona, Massachusetts, Indiana Kentucky and Ohio; Florida could adopt a 250,000 gallon cap if SB1096 or HB1293 is passed).

Continuing the controversy, Ohio Representative Matthew J. Dolan is looking to increase the capacity cap for wineries from 150,000 to 250,000. Though the increase in production volume may be a “little step” in the right direction, it certainly seems like a very little step, allowing only 17 more California wine labels to be shipped to Ohio residents. According to The Plain Dealer, Dolan originally vowed to eliminate the cap altogether, but got a lot of pushback from the Ohio Department of Commerce and from Ohio Distributors (as Uncorked points out, “no surprise”).

Just next door, Indiana also prevents wineries producing over a certain amount of wine per year from shipping directly to its residents. Indiana’s original capacity cap was 500,000, but will increase on July 1, 2008 to 1,000,000 gallons since SB0107 was signed on March 13th by governor Daniels. Though this is the highest volume cap of the four states that have said restrictions,

Many will agree that any permit system that discriminates against a winery for the amount of wine produced is not an ideal permit system. Furthermore, the constitutionality of these caps is being challenged through litigation (see Family Winemakers of California vs. Jenkins). State legislators may adopt a capacity cap restriction for any number of reasons, but none of them seem very fair. The state may claim that it is trying to protect its own wineries by establishing the volume cap just above that of the highest producing in-state winery, but who else is being protected while the consumer’s interests fall by the wayside?

Update: In our original post, we mistakenly stated that that Indiana has a capacity cap that is similar to OH, KY, MA, and AZ. The 500,000 gallon “cap” in Indiana that will increase to 1,000,000 gallons on July 1st, 2008 only applies to wineries in that the applicant must not sell more than this amount of wine per year IN Indiana, excluding wine shipped to an out-of-state address.

Caps Off to Dolan's Intentions

In October of last year, wineries began shipping directly to Ohio residents under a new direct shipping permit law. When the provisions of the law in Ohio were first announced, one of the major subjects of controversy was the capacity cap, which only allows wineries that produce less than 150,000 gallons annually to obtain a permit. Capacity caps continue to be a subject of controversy in all the states that use them (currently Arizona, Massachusetts, Indiana Kentucky and Ohio; Florida could adopt a 250,000 gallon cap if SB1096 or HB1293 is passed).

Continuing the controversy, Ohio Representative Matthew J. Dolan is looking to increase the capacity cap for wineries from 150,000 to 250,000. Though the increase in production volume may be a “little step” in the right direction, it certainly seems like a very little step, allowing only 17 more California wine labels to be shipped to Ohio residents. According to The Plain Dealer, Dolan originally vowed to eliminate the cap altogether, but got a lot of pushback from the Ohio Department of Commerce and from Ohio Distributors (as Uncorked points out, “no surprise”).

Just next door, Indiana also prevents wineries producing over a certain amount of wine per year from shipping directly to its residents. Indiana’s original capacity cap was 500,000, but will increase on July 1, 2008 to 1,000,000 gallons since SB0107 was signed on March 13th by governor Daniels. Though this is the highest volume cap of the four states that have said restrictions,

Many will agree that any permit system that discriminates against a winery for the amount of wine produced is not an ideal permit system. Furthermore, the constitutionality of these caps is being challenged through litigation (see Family Winemakers of California vs. Jenkins). State legislators may adopt a capacity cap restriction for any number of reasons, but none of them seem very fair. The state may claim that it is trying to protect its own wineries by establishing the volume cap just above that of the highest producing in-state winery, but who else is being protected while the consumer’s interests fall by the wayside?

Update: In our original post, we mistakenly stated that that Indiana has a capacity cap that is similar to OH, KY, MA, and AZ. The 500,000 gallon “cap” in Indiana that will increase to 1,000,000 gallons on July 1st, 2008 only applies to wineries in that the applicant must not sell more than this amount of wine per year IN Indiana, excluding wine shipped to an out-of-state address.

Free the Grapes! Legislation and Litigation Update

From Jeremy Benson at Free the Grapes! :

Free the Grapes! Media Update
August 2007

Now that we’re at the end of most state legislative sessions, we thought it timely to provide an update on direct-to-consumer (DTC) wine direct shipping as of month-end July 2007. Here are some highlights, followed by a more detailed description.

Highlights:

o DTC legislation was considered in 23 states;
o Two states transitioned from reciprocal to a DTC permit system (MO, WV) with additional states pending (OR, IL).
o The legal direct shipping states for wineries represent 78% of wine consumption in the U.S., although retailers can reach far fewer states.

Wins:

  • Florida: the third largest state for wine enjoyment, remains a legal state for winery shipments after a fierce defense of the court order that allowed shipping;
  • Hawaii: a concerted effort to reduce quantity limits failed;
  • Missouri: transitioned from reciprocal to permit status (no fee);
  • North Dakota: increased shipping quantity limits;
  • Virginia: now allows Internet retailers without a physical presence to direct ship;
  • West Virginia: replaced reciprocal status with permit bill.

Losses:

  • Arkansas: DTC permit bill failed in committee;
  • New Mexico: reciprocal transition bill failed due largely to opposition by wholesalers and the beer lobby;
  • Georgia: effort to replace cumbersome law with permit bill failed;
  • Texas: passed a law limiting DTC shipping from in-state retailers outside their particular county;
  • Ohio: passed potentially unworkable permit system for DTC shipments, including capacity cap of 150,000 gallons;
  • Legal rulings supported the on-site sale requirement in ME, and opposed a challenge to TN’s shipping prohibition.

LEGISLATIVE UPDATE
Wine Institute provided significant input to the following summary of state activity this year.

States with Legislation Under Consideration

Wisconsin – For 20 years, Wisconsin has been a reciprocal state, allowing its consumers to purchase wine directly from wineries as well as in-state wine retailers. But consumers will lose these privileges if the Budget Bill passes as it is currently written. Anti-consumer provisions were slipped into the Senate version of the 384-page, $66 billion, two-year Budget Bill in mid-July. The conference committee will now reconcile differences in the Senate and Assembly versions of the budget bill.

Illinois – House Bill 429 passed both House and Senate and is before the governor for signature. It creates a winery-only DTC shipping permit that replaces the existing reciprocity law. The Specialty Wine Retailers Association was unsuccessful in securing an amendment continuing shipments from out-of-state retailers, although in-state retailers were successful at maintaining their in-state shipping privilege.

Additional States

Alaska –House Bill 34 (Ledoux) would specifically allow in-state wineries to make DTC shipments to AK consumers, with a 5-gallon per shipment limit. Status: passed House and Senate, and was signed by the Governor on 5/31/07.

Arkansas – Senate Bill 592 (Whitaker), a positive bill that would have created a DTC shippers permit for wineries, died in House Rules Committee March 30.

Connecticut — Senate Bill 1204 was passed into law and changes the time period specified in the DTC shipping statute from 60 days to 2 months for the 5 gallon limit.

Florida – Shipping into FL is continues to be legal after competing bills—with and without discriminatory capacity caps—were considered but ultimately died in committees.

Georgia – House Bill 159 (Willard) and its companion Senate Bill 56 (Untermann) would have replaced the state’s convoluted shipping law with a DTC shipping license for all wineries (and retailers in SB56). The bills died in committee. Wholesaler-supported House Bill 393 (Stephens) sought to create new “domestic farm winery” and national “farm winery” categories with discriminatory capacity caps. The bill died in committee.

Hawaii – House Bill 1093 (Say) and Senate Bill 1019 (Taniguchi) sought to reduce consumer choice by limiting shipments under the existing DTC shipping permit from six cases per winery per consumer per year, to six cases per household per year. Both bills died in committee.

Idaho – House Bill 11 would have modified the permit legislation passed in 2006 to allow wholesalers and retailers in Idaho and other states to ship wine directly to consumers. Bill died in committee.

Maine – Senate Bill 54 (Bromley) would have created a DTC shippers permit for wine & beer. The bill passed the Senate on 6/12/07, but was killed in the house later that week.

Missouri — The Governor of Missouri signed SB 299 transitioning Missouri from a reciprocal state to a permit state effective August 28, 2007. The new permit law requires all wineries to obtain a direct shipping permit (no fee), limit shipments to two cases per consumer per month, submit an annual report by January 31, and pay excise taxes. The direct shipping permit application and instructions are available on the Wine Institute website at www.wineinstitute.org/programs/shipwine.

Nebraska – L441 (Mcdonald) will allocate funds raised by the existing $500 DTC shipper license fee paid by all wineries to be deposited to the NE Winery and Grape Producers Promotional Fund. The bill was signed by the Governor on May 30, 2007.

New Mexico – House Bill 1018 (Silva) passed the House, but was killed in the Senate after intense pressure from wholesalers and the beer lobby. It would have replaced reciprocity with a DTC shipping permit for wineries and retailers.

North Dakota – Senate Bill 2135 was signed into law and makes favorable changes to existing DTC shipping provisions, including: increased quantity limit from one to three cases per month, removed “reciprocal” provision passed in 2005 but never implemented, and removed vague language.

Ohio – During closing stages of budget process an amendment was adopted that will create a potentially unworkable permit system for DTC shipments into Ohio. The law has a capacity cap of 150,000 gallons, along with “per family household” aggregate limit that may prevent wineries from being able to ship even if they qualify for the permit. The bill was signed by the Governor on June 30 and becomes effective October 1, 2007.

Oklahoma – Several bills in the House and Senate were introduced, including a voter referendum to allow OK consumers to receive DTC shipments from out-of-state wineries, but a permit system has not been outlined. All bills died in committee.

Oregon – House Bill 2171 (Minnis) would transition state from a reciprocal DTC to a permit system for wineries and retailers. Status: The bill passed the House & Senate, and was sent to the Governor for signature in June.

Pennsylvania – House Bill 255 (Godshall) and Senate Bill 293 (Ferlo) are positive DTC shipping permit bills with a $100 registration fee, two cases per month to any individual. Taxes collected. Status: Both bills remain in Committee.

Tennessee – House Bill 1850 (Todd) creates a DTC shipping permit for 2 cases annually. Provisions: $100 fee, annual reports, annual excise and sales tax payments (companion bill was SB 1977, Stanley). Both bills died in Committee.

Texas – Senate Bill 1229 (Gallegos) was signed by the governor May 5, and limits the ability of TX retailers to use common carriers for DTC delivery outside their particular county. The bill was aimed at pending litigation spearheaded by the Specialty Wine Retailers Association seeking statewide sales via common carrier.

Virginia – House Bill 1784 (Cosgrove) and Senate Bill 1289 (Watkins) augmented current direct shipper permit to clarify that those shipments are by common carrier only, and created separate allowance for any legal shipper to make deliveries of up to 4 cases of wine to a consumer in their own vehicle. Additionally, Senate Bill 984 (Edwards) also became law, creating an “internet wine retailer license” to allow sales by a retailer having no physical premise.

West Virginia – Senate Bill 712 (Kessler) was signed by the governor and, among many other provisions, replaced reciprocity with a DTC permit bill for wineries, wholesalers and retailers.

LITIGATION UPDATE

Maine – As previously reported elsewhere, on March 5, U.S. District Court Judge Carter adopted the magistrate’s report and recommendation issued three months ago in the Cherry Hill (Tanford/Epstein) suit. This ruling supports an on-site sale requirement for any sales to consumers, contrary to an opinion rendered in December 2006 in KY ruling that on-site provisions were unconstitutional.

Tennessee – As previously reported elsewhere, the U.S. District Court in Tennessee ruled in favor of the state regarding what most thought was an ill-advised lawsuit (Jelovsek v. Bresden). The plaintiffs alleged that consumers faced a greater burden in traveling to another state to purchase wine in person at a winery than they faced in buying wine directly from a TN winery tasting room. The judge was not convinced, and the wholesalers have promoted their “victory” to bolster arguments for the preeminence of the 3-tier system in all matters.

Texas – All summary judgment motions have been filed. Oral arguments are scheduled for September 21 in Dallas. Wholesalers claim that passage of Senate Bill 1229 moots this lawsuit (see Texas paragraph under legislation, above).

Massachusetts — Motions for summary judgment are expected this winter in the case that seeks to overturn the 30,000 gallon production cap in the DTC law. Family Winemakers of California is the lead plaintiff.

Buckeye Budget Bill Could Affect Direct Shipping

The Ohio Senate unanimously passed HB 119, which would move Ohio towards becoming compliant with Granholm. HB 119 creates a permit system for wineries seeking to ship directly to consumers in Ohio.

As reported by the Dayton Daily News, the direct shipping provision was inserted by the Senate as an amendment to the proposed 2008-09 budget bill. Some controversy regarding the bill exists as is evidenced by comments from vintners who feel that Ohio wineries have been purposely left out of the legislative process altogether. Others in Ohio, however, believe HB 119 is a good bill for both in-state and out-of-state wineries. HB 119 will next be considered in a Conference Committee of both chambers of the legislature.

If passed as is by the Conference Committee and signed by Governor Tom Strickland, the bill will require wineries who ship into the state of Ohio to obtain an “S Permit” at the cost of $25.00. Wineries that qualify for the “S Permit” must produce less than 150,000 gallons/year, send copies of invoices of all shipments to the Department of Commerce Division of Liquor Control, and report all shipments of wine into Ohio and its destination annually. HB 119 also creates the “B-2a Permit” allowing wineries that produce less the 150,000 gallons/year to distribute directly to retailers.

An interesting aspect of HB 119 is the customer volume limit of 24 cases of wine per year. The language in this provision is similar to that contained in the Massachusetts General Laws that we mentioned in an earlier post. This provision may burden wineries to track the shipment of wines by all “S Permit” holders. Furthermore, this limitation is applied to “Family Households,” a term which remains undefined by the Ohio Legislature at the time of this post.

Another important provision in the Ohio bill is the 150,000 gallon production limit. This limitation, while significantly larger than those applied in Massachusetts, seem to be of the same effects as those under current attack in the Family Winemakers of California v. Jenkins case. A ruling by the Massachusetts District Court in favor of Family Winemakers of California may give wineries some ground to challenge these limitations should they become law in Ohio.

Finally, HB 119 establishes a tax scheme for wines shipped into Ohio. In essence, wines containing 4-14% alcohol by volume are subject to a tax of 30 cents/gallon; wines containing 14-21% alcohol are taxed at the rate of 98 cents/gallon; and sparkling wine will be taxed at the rate of $1.48/gallon.

The ShipCompliant research team will track the progress and effects of HB 119. Stay tuned…

Why Can't I Have a Boston Wine Party?

The current lawsuit Family Winemakers of California v. Jenkins challenges an important aspect of the Massachusetts law regarding direct to consumer shipment of wine by out of state wineries. Recent articles have mentioned that the production limits adopted by Massachusetts act as a method of protecting in state wineries from interstate commerce and restrict the choices of Massachusetts residents. Family Winemakers of California’s complaint asserts that

“in purpose and effect, the limits imposed by these capacity caps fall solely upon out-of-state wineries, whereas Massachusetts wineries continue to enjoy unfettered access to the Massachusetts market.”

Another aspect of the Massachusetts law which is thwarting the delivery of out-of-state wines is the customer aggregate volume limit, which restricts the delivery of wine to 240 liters (about 26 cases) per consumer per year for all wineries. In effects, the law burdens wineries to keep track of how much wine each Massachusetts consumer has purchased not only from their winery, but from all wineries across the country. Wineries that do ship directly to Massachusetts consumers risk violating this provision exposing themselves to fines and loss of shipping privileges.

As important as the removal of production caps and customer volume limits are, the biggest hurdle facing wineries is that neither FedEx nor United Parcel Service offers delivery of wine into the state of Massachusetts. Under the current laws, common carriers are required to obtain and carry in each delivery vehicle a special permit to deliver wine. As a result of this and other anomalous provisions, carriers refrain from delivering wine into Massachusetts. Absent a vehicle for shipping, wineries are unable to send their wines into the Commonwealth, forgoing potential profits from one of the largest wine consuming states and a venue to showcase their artistry. Moreover, Massachusetts residents are affected as the law unreasonably restricts their access to the national marketplace and their freedom of choice in wines.

In the wake of Granholm, it makes sense for wineries to challenge the type of legislative provisions like those currently under attack in Massachusetts. However, once production limits are banned, the next step toward true Direct to Consumer shipping is the abrogation of customer volume limits and anomalous common carrier provisions like those found in the Massachusetts General Laws.

Why Can’t I Have a Boston Wine Party?

The current lawsuit Family Winemakers of California v. Jenkins challenges an important aspect of the Massachusetts law regarding direct to consumer shipment of wine by out of state wineries. Recent articles have mentioned that the production limits adopted by Massachusetts act as a method of protecting in state wineries from interstate commerce and restrict the choices of Massachusetts residents. Family Winemakers of California’s complaint asserts that

“in purpose and effect, the limits imposed by these capacity caps fall solely upon out-of-state wineries, whereas Massachusetts wineries continue to enjoy unfettered access to the Massachusetts market.”

Another aspect of the Massachusetts law which is thwarting the delivery of out-of-state wines is the customer aggregate volume limit, which restricts the delivery of wine to 240 liters (about 26 cases) per consumer per year for all wineries. In effects, the law burdens wineries to keep track of how much wine each Massachusetts consumer has purchased not only from their winery, but from all wineries across the country. Wineries that do ship directly to Massachusetts consumers risk violating this provision exposing themselves to fines and loss of shipping privileges.

As important as the removal of production caps and customer volume limits are, the biggest hurdle facing wineries is that neither FedEx nor United Parcel Service offers delivery of wine into the state of Massachusetts. Under the current laws, common carriers are required to obtain and carry in each delivery vehicle a special permit to deliver wine. As a result of this and other anomalous provisions, carriers refrain from delivering wine into Massachusetts. Absent a vehicle for shipping, wineries are unable to send their wines into the Commonwealth, forgoing potential profits from one of the largest wine consuming states and a venue to showcase their artistry. Moreover, Massachusetts residents are affected as the law unreasonably restricts their access to the national marketplace and their freedom of choice in wines.

In the wake of Granholm, it makes sense for wineries to challenge the type of legislative provisions like those currently under attack in Massachusetts. However, once production limits are banned, the next step toward true Direct to Consumer shipping is the abrogation of customer volume limits and anomalous common carrier provisions like those found in the Massachusetts General Laws.