Posts from the Texas Category
Hidden Costs of Direct Shipping Licensing
March 3rd, 2010
Before jumping into a direct shipping program in a new state, wineries should consider their current prospect list, market potential, shipping difficulty and costs. When it comes to calculating start-up costs to enter a new state, there is often more than meets the eye. In addition to license fees, wineries may need to budget for a number of “hidden” fees including bonds, label registration fees and other application fees.
Bonds
Some states require wineries to obtain a bond in order to secure a direct shipping license. A bond is a written guaranty, purchased from a bonding company (usually an insurance firm or a surety company), to guarantee that all taxes due will be paid to the state. If there is a failure to pay, the bonding company will make good up to the amount of the bond.
Bonds for direct shippers range from $500-$1500 depending on the state, but premiums, or out-of-pocket costs, to wineries typically average around 10% of the total bond price, or $50-$180 out-of-pocket on an annual or biannual basis. Different bonding agents may quote different rates, so it pays to shop around.
Connecticut, Idaho, Illinois, Indiana, Kansas, Texas and Wisconsin all require that wineries secure a bond before submitting your license application. For wineries that ship 40,000 gallons or more annually, Oregon issues a bond document after the license application has been received but before the license is issued. Wineries that ship less than 40,000 gallons to Oregon annually can apply for a bond wavier.
Label Registration
Several states require brand or label registrations for direct shipping. Ohio, a state that 26% of direct shippers have in their program, requires wineries to register all the labels that will be shipped into the state for a one-time registration fee of $50 per label.
If that sounds pricey to you, consider Connecticut who charges $200 per label and requires labels to be re-registered every 3 years if they are still actively shipped into the state.
Georgia, Michigan, New York, North Carolina and Virginia do not charge a fee though label or brand registration is required in these states.
Application Fees
Some states may require business, Secretary of State or tax registration, or other one-time application fees. This varies from state to state and depends on how your business is structured. Wineries that start shipping to Arizona, Connecticut, Hawaii, Kansas, Maine, Michigan, North Carolina, Ohio, Tennessee, Virginia or Wisconsin may encounter one or more of these fees.
License, bond, label registration and application fees all factor into the true break-even costs of shipping to a new state. The key to ensuring a profitable direct shipping program is to research thoroughly in order to avoid getting caught off-guard with unexpected costs.
Notes on Wine Distribution v.32
February 4th, 2010
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.”
Siesta’s Over
January 27th, 2010
On January 26th, the Fifth Circuit Court of Appeals ended the puzzling status of interstate retailing in Texas created by the lower court’s decision in Siesta Village Market. The district court had ruled that out-of-state retailers had a Commerce Clause right to sell wine to Texas consumers, but only wine that had been purchased from a Texas-licensed wholesaler.
The decision is another example of uncertainties resulting from the principal unresolved Granholm question: How does one reconcile the location-neutrality principle with the infamous North Dakota dictum to the effect that states may discriminate against out-of-state wholesalers? The Fifth Circuit’s answer, like that of the Second Circuit, is that Granholm extended Commerce Clause protection to wineries, but not to wholesalers or retailers, because national markets in the lower tiers would make it impossible for a state to protect the “traditional three-tier system.” As the Court of Appeals judge said about setting aside fundamental economic policy embodied in the dormant Commerce Clause to follow a judicial aside that was not part of the Granholm holding, “That language may be dicta. If so, it is compelling dicta.”
Post-Granholm litigation shows clearly enough that judges, though not bound to follow dicta, will elevate it to persuasive precedent when it coincides with their value systems. The values question is whether states’ asserted 21st Amendment right to maintain a privileged middle tier trumps the Commerce Clause policy against differential treatment of in-state and out-of-state economic interests. All one can say at this point is, “to be continued.”
by R. Corbin Houchins, CorbinCounsel.com
Texas to Roll Out New Volume Limits
August 17th, 2009
New rules in Texas should benefit Lone Star consumers, and also make life a little easier for wineries. On June 19th, Texas Governor Rick Perry signed into law HB 1084, which will take effect on September 1st, 2009. Under the new rules, three different volume limits replace the existing set of two limits for licensed shippers.
Currently, licensees may ship up to three gallons of wine within “any 30-day period”. This rule was perhaps the most difficult, and most commonly violated rule in a compliance check out of all state limitations. First, three gallons translates to just over 15 standard 750 mL bottles, whereas most states stick to a standard case or two-case limit. More importantly, the “rolling” 30-day period was very problematic to track for wineries that did not use an automated compliance solution. The majority of state volume limits are tracked on a calendar (month or year) basis, but this effectively created 365 different 30 day periods to track.
The new bill establishes three different volume limits for direct shipments to Texas:
- No more than nine gallons (46 bottles) to the same consumer within any calendar month
- No more than 36 gallons (181 bottles) to the same consumer within any 12-month period
- No more than 35,000 gallons (14,721 cases) to all Texas consumers annually
Although some coverage of the changes has highlighted a “tripling” of the volume limit (from 3 gallons to 9 gallons), the annual consumer limit actually stays the same at 36 gallons. According to the House Research Organization’s bill analysis,
Increasing from three to nine gallons the maximum amount of shipments to the same consumer within a month would acknowledge the unique seasonal requirements of wineries as well as the realities of Texas summers. Wine is a perishable product that spoils at temperatures above 75 degrees Fahrenheit, so many out-of-state wineries are reluctant to ship to Texas, especially during July and August.
CSHB 1084 would not increase the overall amount of wine that a winery or out-of-state shipper could ship to the same consumer per year. In fact, it would codify in statute the current limit of 36 gallons per year, which is based on the existing restriction of no more than three gallons per month. It simply would allow wineries to ship somewhat larger quantities of wine to Texas consumers during the cooler seasons of the year.
An Unfortunate Direct Shipping License Clarification in Texas
December 4th, 2008
Wineries applying for a Texas Direct Wine Shipper’s Permit or renewing their existing permit must now pay a surcharge of $160 in addition to the $75 annual permit fee. Currently the Direct Shipper’s permit is renewed annually. However, beginning January 1, 2009 all Direct Shipper licenses will be valid for two years. Applicants will have to pay license fees and surcharges for 2 years totaling $470 when applying for a permit in 2009. The Texas Alcohol Beverage Commission added significant surcharges to a wide range of licenses affecting both in-state and out-of-state applicants.
Annie Bones, State Relations – Wine Institute
The Lone Star State: To File Monthly or Quarterly, that is the Question
August 22nd, 2008
As was reported earlier this week, the Texas C-240 Direct Shipper’s Report will change from a monthly to a quarterly return for orders shipped after September 1st. However, we’ve received a number of questions about how to report shipments for the month of August.
August is the last month that will require a monthly return, which will report shipments to Texas consumers only for the month of August. This report is due September 15th, and should include tracking numbers for each shipment. The newly updated quarterly frequency will commence on September 1, 2008, including orders shipped from September through November, and is due December 15th. Also, please note that the new quarterly frequency is based on Texas’ fiscal year (beginning September 1st), not on the familiar calendar year (beginning January 1st), therefore the quarterly reports will be due on the following schedule: December 15th, 2008; March 15th, 2009; June 15th, 2009; etc.
Good News from Texas
August 20th, 2008
On September 1, 2008 Texas will begin requiring direct shipping reports to be submitted on a quarterly basis. Reports will be due within 15 days of the completion of every 3 month quarter. Currently, direct shippers must file a report and pay taxes every month. The new report will no longer require direct shippers to report the common carrier tracking number for each shipment, the name of the common carrier will be sufficient.
All permit holders have been mailed a copy of the Quarterly Direct Shipper’s Report by the Texas Alcohol Beverage Commission and the form will soon be available on the TABC and Wine Institute website. The last monthly reporting period is August 2008. Shipments sent on or after September 1, 2008 should be included in the quarterly report.
Annie Bones, State Relations – Wine Institute
Woman of the Hour – Tracy Genesen
August 7th, 2008
Tracy Genesen of Kirkland & Ellis, LLP is one of the prominent forces currently driving legal change in the wine industry and was the keynote speaker at ShipCompliant’s 2008 Users Conference a few weeks ago.
Genesen’s speech analogized her role in the industry to a “court of last resort” when legislative means are unsuccessful in remedying protectionist state laws that have remained in effect despite the Granholm ruling in 2005. Granholm resolved many instances of differential treatment by the states and was extended to apply to self-distribution in the Costco ruling. However, Genesen revealed that the post-Granholm time of prosperity has given way to another host of problems. For example, states like Maine and Arkansas, in which direct shipping markets do not exist, have level playing fields; however, treating everyone the same by not allowing anyone to ship is a detriment to the wine industry. In addition, courts are struggling to deal with retail-to-consumer shipping laws in many states. Challenges to these laws have produced interesting results, like the “funky remedy” by a district court judge in a Texas lawsuit which declared that Granholm applied to retailers, but that retailers must first buy wine through Texas-licensed wholesalers. Wholesalers have also maintained their grip on states like Massachusetts by crafting legislation that is beneficial to them but also facially neutral. The 30,000 gallon capacity cap in Massachusetts exemplifies such economic protectionism and is the contention in the Family Winemakers of California case. Oral arguments in the case took place on July 29th in Boston and the decision is expected sometime this fall.
Many thanks to Tracy Genesen for sharing her insights into the current legal atmosphere of the industry. To view Genesen’s speech in its entirety or that of any of the other speakers at the conference, please see the 2008 Users Conference Simulcast. More information on the cases in Massachusetts and Texas is also available on the ShipCompliant Blog.
Six Veils Out of Seven: Retailer Shipments Under Granholm
January 30th, 2008
On January 14, 2008, a district court in Texas rendered a mostly pro-trade decision in Siesta Village Market, LLC v. Perry that clarified much, but danced around the hottest issue, leaving the final veil in place.
The case upholds the basic Specialty Wine Retailers contention that a state that allows its retailers to deliver to consumers must permit direct shipment by out-of-state retailers. It also has some important things to say about the meaning of Granholm’s less pellucid passages. In particular, it attempts to deal with the most significant internal tension of the Granholm majority opinion, viz., the difficulty of squaring the holding of the opinion, that states cannot require out-of-state wineries to become residents as a condition to reaching local markets, with a dictum-within-a-dictum quoted from a 1990 Supreme Court case, North Dakota v. United States, to the effect that the 21st Amendment empowers states “to require that all liquor sold for use in the State be purchased from a licensed in-state wholesaler.” (For an explanation of the difference between holdings and dicta, see the blog post, Discrimination Against Out-of-State Retailers After Granholm).
The Siesta Village decision and its implications merit further discussion, in particular on the following points:
1. Texas had a “citizenship” requirement of at least a year’s residence in the state for most licenses. It had already been declared unconstitutional when applied to newly arriving wholesalers with physical premises within the state. Siesta Village goes farther by analyzing the statute as a location requirement and holding it unconstitutional on Commerce Clause grounds, to the extent it prevented issuance of the requisite retailing licenses to out-of-state retailers.
2. The Siesta Village judge takes Granholm as a location parity case, and his opinion is explicit that physical presence requirements “plainly discriminate against interstate commerce.” However, like every analyst of Granholm, he had to deal with a key question posed by the quotation from North Dakota, noted above: If a state has the right to require all wine to “be purchased from a licensed in-state wholesaler,” how does one give effect to the Commerce Clause policy against location discrimination? One way of resolving the issue is to require the state to accept methods of consummating the purchase requirement that do not substantially burden interstate commerce relative to local, such as running the sale through the local middle tier without requiring the wine to take an economically disadvantageous logistical path when sold by an out-of-state retailer. Another is to declare that the quotation is dicta and therefore not binding in applying the Granholm holding to a different chain of distribution where its effect on commerce is more problematic –rather too bold a departure to expect in a district court opinion. In the event, the judge simply let the contradiction lie, holding that the retailers have to comply with Texas laws requiring a state retail license and purchase from a Texas-licensed wholesaler, a deferral that has been described as a ticket to the next round of litigation. Meanwhile, the Texas Alcoholic Beverage Control Commission has informally commented that it is not their problem.
3. Experts disagree on the extent to which Granholm was a “weak record case” that could have gone the other way had the states made a better showing of regulatory problems, for example in tax collection and averting deliveries to underage recipients. Siesta Village takes the opposite view, and granted summary judgment, which means the court decided Texas failed to show substantial likelihood that, if it were afforded a full hearing, it would present evidence on which a judgment in its favor could be based. To win in a direct discrimination case a state would have to show there is no reasonable alternative to discrimination for achieving legitimate regulatory objectives. The court reads Granholm to say that the availability of licensing and modern communications makes such an argument inherently implausible, and comes close to saying a state can never prevail on the proposition that interstate delivery is more likely to cause underage drinking than intrastate delivery.
4. Another point of controversy among lawyers is whether the Commerce Clause is indifferent to whether a court cures discrimination by leveling up or down. Siesta Village takes the side of those who argue that it makes no sense to level down in enforcing a constitutional provision intended to encourage interstate trade, at least in the absence of a clear legislative statement requiring termination of in-state privileges in case of invalidity of interstate prohibition. In constitutional law terms, the Siesta Village judge may have discovered a penumbra to the Commerce Clause that would prevent courts from taking such simplistic approaches as counting the number of lines of statutory text that would have to be rewritten and picking the smaller revision.
5. Although Siesta Village rejected the wholesalers’ strange argument that the discrimination arose not from Texas’s intent, but from the happenstance of the plaintiffs’ locations, it indulged in dicta indicating states can adopt on-site-only laws, in which case the “accident of geography,” and not state discrimination, would be responsible for excluding remote sellers. It appeared to accept the reasoning that because there is no “direct shipment market” in those states, the remote sellers are not excluded from anything by the prohibition, which is arguably a flawed argument under the Commerce Clause, whose policy extends to disproportionate burden as well as overt discrimination.
Appeals seem likely. Meanwhile, the parties in Knightsbridge Wine Shoppe, LTD v. Jolly, who agreed to extend Granholm, at least temporarily, to non-producing retailers selling to California consumers, will presumably take up their cudgels on application of the Siesta Village analysis, versus that of the New York case, Arnold’s Wines, Inc. v. Boyle on September 9, 2007. In Arnold’s Wines, the New York federal district court dismissed a retailer suit without an evidentiary hearing, on the grounds that the state had a 21st Amendment right to require all sales to go through an in-state wholesaler, a proposition suggested by the vexing dictum in the Granholm opinion.
The Arnold’s Wines decision seems to miss Granholm’s point that a state may have the right to require all wine to go through three tiers, but does not have the right to apply its rule with location discrimination unless it provides evidence that its discrimination against interstate sellers is required by a legitimate state objective that cannot be achieved through nondiscriminatory means. The Siesta Village judge expressly declined to follow Arnold’s Wines, which it plausibly characterized as putting the 21st Amendment above the Commerce Clause, precisely what Granholm forbids.
Retailers win one, lose one in Texas court
January 16th, 2008
Judge Sidney Fitzwater of the U.S. District Court for the Northern District of Texas handed down a very important decision on Monday. In the Siesta Village Market Opinion, Judge Fitzwater said the following
The court concludes that Texas’ ban on the sale and shipment of wine by out-of-state retailers to Texas residents is unconstitutional, but it also holds that the requirement that wine retailers——including out-of-state retailers——first purchase such wine from Texas-licensed wholesalers is constitutional.
We’ll have much more to say about this case in the future, but this opinion is important because, for the first time, Judge Fitzwater said effectively that the principals of Granholm v. Heald should apply not only to wine producers, but also to wine retailers. In other words, just as Texas must treat in-state and out-of-state wineries evenhandedly, it must also treat in-state and out-of-state retailers evenhandedly. The following sentence in the opinion highlights this claim.
Because the retailer-plaintiffs and in-state wine retailers are engaged in the same business——the sale of wine to retail consumers——and seek access to the same market——Texas consumers——they are potential competitors and are therefore similarly situated for purposes of dormant Commerce Clause analysis.
Unfortunately for retailers, the good news also came with a new twist. The decision upheld the constitutionality of the Texas requirement that both in-state and out-of-state retailers that wish to ship to Texas consumers first purchase the wine from a wholesaler licensed in the state of Texas. A California wine retailer, therefore, must first purchase wine from a licensed Texas wholesaler before shipping it to Texas consumers. Tom Wark, Executive Director of the Specialty Wine Retailers Association, had the following to say about the new twist.
Not only is it illegal under California law and other state’s law, but I believe it’s illegal under Texas law, Wark said. We won on everything but there’s that little unfortunate part the judge got wrong. I feel sorry for Lou Bright (who heads the Texas ABC). How is he going to implement this?
Prior to this decision, the parties had agreed to a preliminary injunction that allowed out-of-state retailers to ship wine into Texas without a permit. We’ll now wait for administrative guidance from the Texas ABC. In parallel, the decision will likely be appealed.
Is the retail to consumer shipping battle headed to the Supreme Court?
October 15th, 2007
The issue of direct shipments by retailers to consumers has become a very hot topic of late. As of today, retailers can ship to less than half of the number of states to which producing wineries can ship. The Specialty Wine Retailers Association is fighting hard with both legislative efforts and litigation to open more states for retail to consumer shipments. The heated battle in Illinois, where out-of-state retailers recently lost the ability to ship to consumers under HB 429, raised national awareness to this issue.
The fundamental question is whether the decision in Granholm v. Heald that said states must treat in-state and out-of-state wineries evenhandedly should also apply to in-state and out-of-state retailers. R. Corbin Houchins recently made two posts (September 18th and October 5th) that do an excellent job of highlighting the legal questions that come into play when attempting to extend Granholm to retailers. In his October 5th post, Mr. Houchins indicates his disagreement with the reasoning of the recent and important Arnold’s Wines v. Boyle opinion, which upheld discrimination against out-of-state retailers in New York.
There is a very interesting recent article, with substantial background materials for lawyers who do not practice in the subject area, on FindLaw.com titled “The Fight Over State Laws Favoring In-State Alcohol Purveyors: Do Such Laws Violate the Dormant Commerce Clause?” that also examines the important ruling in Arnold’s Wines. This article is definitely worth reading.
The Court has had to examine the intersection between the dormant Commerce Clause idea and the Twenty-First Amendment a number of times. Two years ago, in the seminal case of Granholm v. Heald, the Court appeared to send a message that while the Twenty-First Amendment may indeed empower states in some ways, it does not trump the anti-discrimination, anti-balkanization norm of the Commerce Clause.
The federal district judge in the recent Arnold case in New York properly acknowledged the importance of Granholm. Nevertheless, the judge held that Granholm’s ban on state discrimination against out-of-staters applied only to state laws regulating producers of alcohol, not laws (such as the one at issue in the recent New York case) that regulated wholesalers or retailers.
The New York judge’s interpretation of Granholm is, I believe, in error.
The Arnold’s Wines case will likely impact current (Texas, California) and future (Illinois?) cases in the battle over retail to consumer shipments and could possibly end up in the Supreme Court, where a favorable decision could potentially open the legislative floodgates for retailers as Granholm did for wineries in 2005.
Free the Grapes! Legislation and Litigation Update
August 8th, 2007
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.
Free The Grapes! legislative update
March 19th, 2007
Free the Grapes! recently provided an update on direct to consumer shipping legislation and litigation for 2007. As you can see below, many changes are likely to come this year.
LEGISLATIVE UPDATE
Wine Institute provided the following summary of direct shipping legislation around the country.
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 2/14/07 and moves to Senate Community and Regional Affairs and to Senate Labor and Commerce.
Arkansas – Senate Bill 592 (Whitaker), a positive bill, creates a DTC shippers permit for wineries. Provisions include: 24 cases annually, $10 permit application fee, sales and excise tax payments annually. Status: Introduced.
Connecticut — Senate Bill 1204 (Joint Committee on General Law) makes a change to the time period specified in the DTC shipping statute from 60 days to 2 months for the 5 gallon limit. Status: Passed out of General Law on 2/27/07.
Florida – Shipping into FL is currently legal. Senate Bill 126 (Saunders) and SB 2282 (Geller) would implement a version of the industry’s model direct shipping bill, but both bills include a discriminatory 250,000 gallon capacity cap opposed by consumers and wineries. Alternatively, House Bill 1217 (Bogdanoff) does not include a cap.
Georgia – House Bill 159 (Willard) and its companion Senate Bill 56 (Untermann) create a DTC shipping license for all wineries (and retailers in SB56), repealing existing law which prohibits wineries with a wholesaler from obtaining a license. Other provisions: $100 permit fee, 24-case annual limit, sales and excise taxes to be collected. This bill is getting industry support.
The wholesaler’s House Bill 393 (Stephens) includes a discriminatory 100,000 gallon capacity cap, creates a new “domestic farm winery” using at least 50% GA grapes, and a national “farm winery” definition of a winery under 100,000 gallons that uses at least 40% grapes from its state of domicile. Such wineries can obtain a DTC shipping permit to ship up to 20 cases of wine per consumer annually. Status: Favorably reported out of House Regulated Industries Committee on 2/21/07.
Hawaii – Two bills, House Bill 1093 (Say) and Senate bill 1019 (Taniguchi), appear to be dead in committee. They would have reduced consumer choice by limiting shipments under the existing DTC shipping permit to 6 cases annually per household from an aggregate of wineries (current system is 6 cases per winery).
Idaho – House Bill 11 would modify the permit legislation passed in 2006 to allow wholesalers and retailers in Idaho and other states to ship wine directly to consumers. Status: Referred to House Revenue and Taxation on 1/22/07.
Illinois – House Bill 429 (Acevedo) is similar to last year’s transition bill that creates a winery-only DTC shipping permit to replace the existing reciprocity law. Provisions include a tiered permit fee based on size of the winery from $150 to $1,000, 12 cases annually, with sales and excise tax collection. Free the Grapes! is encouraging inclusion of retailers in the bill. Status: Passed from House Consumer Protection Committee on 2/20/07 by vote of 11-0. There is also a similar bill in the Senate (SB123, Silverstein).
Iowa – ABC hearings were held on 2/24/07. The ABC recommended to legislators that the reciprocity statute be replaced with a DTC shipping permit system. Other proposals addressed at the hearing include changing the local winery preferential tax rate, changes in Iowa wine labeling rules for IA wineries, and changes to existing designation of 5% of wine tax revenues to Iowa Wine Development Board. Status: Awaiting action by legislature.
Maine – Senate Bill 54 (Bromley) creates DTC shippers permit for wine & beer. Winery or retailer obtains a COA and nonresident shipper’s license ($100 fee). Annual sales and excise tax payments required. Status: Introduced.
Missouri – House Bill 944 (Cooper) creates a DTC permit for wineries to ship 2 cases per month, and requires permit and tax collection. Carriers must obtain permit. Amendment to add retailers drafted on 2/26/07. Status: Introduced.
Montana – Senate Bill 524 (Wanzenried) proposes changes such as adding “purposely, knowingly or negligently” language to the connoisseur’s license, which does not currently work for consumers or wineries. Status: Reported “Do Pass” from Senate Business, Labor and Economic Affairs on 2/21/07.
New Mexico – House Bill 1018 (Silva) creates DTC shipping permit for wineries and retailers to replace reciprocity. Provisions: $50 fee, pay excise and Gross Receipts Tax, 24 cases annually. Status: Passed favorably on 9-1 vote from House Business & Industries Committee on 2/25/07. Companion bill is Senate Bill 1047 (Taylor).
New York – Interestingly, Assembly Bill 4345 (Destito) replicates the wine DTC shipping program for beer manufacturers and beer wholesalers. Free the Grapes! has no activities or campaigns concerning this bill because it deals with beer and not wine. Status: Introduced.
North Dakota – Senate Bill 2135 (Senate Finance and Taxation Committee) makes changes to existing DTC shipping statute. Provisions: increases amount of shipments to 3 cases per month (currently 1 case per month), removes “reciprocal” provision passed in 2005 but never implemented. Removed vague language that could have been interpreted to allow an in-state winery to also hold a wholesalers license – clarifies no self-distribution, which was believed to be the case by in-state industry at this time anyway. Status: Passed Senate 1/23/07 and now to House Finance and Taxation.
Oklahoma – Several bills in the House and Senate have been introduced, several of which request a voter referendum to allow OK consumers to receive DTC shipments from out-of-state wineries, but a permit system has not been outlined.
Oregon – House Bill 2171 (Minnis) transitions OR from a reciprocal DTC to a permit system. Would cover wineries only. Status: Introduced. This is the OLCC bill. House Bill 2488 (House Business and Labor Committee) is similar, allowing wineries, retailers and “associations” to obtain permits. $50 fee. Excise taxes to be paid. Unlimited shipments. Status: Introduced.
Pennsylvania – House Bill 255 (Godshall) is a positive DTC shipping permit bill with a $100 registration fee, 2 cases per month to any individual. Taxes collected. Status: Introduced.
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. Status: Introduced. Companion bill in Senate (1977, Stanley).
Virginia – Senate Bill 984 (Edwards) creates an “internet wine retailer license” to allow sales by a retailer having no physical premise. Status: Passed both House and Senate and sent to Governor on 2/22/07.
West Virginia – Senate Bill 712 (Kessler) is an omnibus liquor bill, that among many provisions, includes creation of a DTC shipping permit for wineries, wholesalers and retailers. Provisions include: $150 permit fee, 2 cases per month, sales and excise tax payments. Removes self distribution privilege for instate wineries. Original 50% tax increase has been removed. Creates a “wine spa” license, a wine B&B license, and a “mini” winery license to replace farm winery permits.
LITIGATION UPDATE
Texas — The Specialty Wine Retailers Association (SWRA, www.specialtywineretailers.org) litigation in Texas to address that state’s discriminatory stance between in-state and out-of-state retailers is in its discovery phase. Until the case is decided, out-of-state retailers may continue to ship to Texas consumers.
Massachusetts — The Family Winemakers of California reports that its lawsuit against the State of Massachusetts seeking to overturn the 30,000 gallon production cap in the DTC law is still in the discovery phase. Once discovery is complete both sides will be preparing motions for summary judgment for later in the year.
Dropping the Second Shoe
June 19th, 2006
Recent lawsuits in California, following the preliminary consent decree in Texas, bring home the second major implication of Granholm.
The Supreme Court opinion of May 2005 told us that a state may not allow its own wineries to sell directly to consumers if it excludes out-of-state wineries. Its first implication �that states allowing their own wineries to distribute directly to retailers may not deny out-of-state wineries access to those customers� is expressed in the November 2005 Costco ruling, which is part of the April 2006 judgment in that case.
Reports from the Central District of California, where one of the current suits is filed, indicate the state may respond like the Texas authorities, negotiating a preliminary injunction that would expand market access while the case is pending, but not definitively forfeit the state�s right to defend the suit by attempting to distinguish Granholm. Some concession seems necessary, because as the result of political maneuvering the current California statute incorporates reciprocity as a requirement for shipment by retailers, although the statute was passed primarily to eliminate that feature and the tax waiver for direct shipment by wineries. Most analysts agree reciprocity is inconsistent with Granholm.
The third shoe of the three-legged issue will be shipment by wholesalers across state lines. A suit championing that theory was rumored in Texas and appears to be a logical next step. Whether there or elsewhere, one can expect another thump soon.
Questions remain on the pivotal question whether states can make a case for discriminating against the more numerous and perhaps less stable out-of-state retail businesses in ways Granholm says they can�t against out-of-state wineries. In cases decided to date, no state has put together a coherent record supporting its approach. Opponents of freer trade read Granholm as a bad record case and hold out hope of state victory in a better-litigated suit.
On the other hand, Granholm states the principles of non-discrimination very broadly and defines the 21st Amendment very narrowly. Moreover, the new members of the Supreme Court replace Granholm dissenters and appear unlikely to affect the balance if another case reaches them under the Commerce Clause. My guess is that Granholm issues won�t be in the Supreme Court again any time soon, because the current spate of cases involves outright discrimination against interstate commerce and is likely to be settled in the circuit courts of appeals in favor of the plaintiffs. If the circuits do not split, the Supremes probably won�t hear appeals.
The following round of cases will challenge volume caps, high license fees, and other limitations the wholesalers have been able to pile on in state legislatures. If they are analyzed as direct discrimination, they are probably winners, but they may be decided as burdening cases, in which regulatory interests are balanced against effects on commerce, with far less certain outcomes.
Preliminary injunction in Texas is a temporary truce
May 29th, 2006
The recent preliminary injunction entered by agreement in Wine Country Gift Baskets.com v. Steen is only a temporary truce. Both sides are reportedly preparing for a contest over the final judgment, while the delivery companies and potential retailer-shippers attempt to figure out what the requirement that shipments be by �a carrier permitted by Texas Alc. Bev. Code Ch. 43� means in context.
Wine Country demonstrates that we are still struggling to understand the implications of Granholm. Much of the difficulty arises from what appears on superficial reading as an inconsistency in the majority position. The result in the case, like most of the text of the majority opinion, is decidedly hostile to location requirements. Nevertheless, the majority quotes from the Scalia opinion in the no-majority (4-4-1) case, North Dakota v. U.S., which refers to a 21st Amendment right to require all wine to pass through an �in-state wholesaler.�
North Dakota may have replaced Young�s Market as the repository of sacred text for adherents of old-time 21st Amendment theory. The subject quotation, however, is merely obiter dicta in Granholm and therefore not part of the case as a binding precedent. Mr. Justice Thomas excoriates the majority for what he takes as their obtuse failure to see the contradiction between that dictum and the actual holding of the case, which clearly finds the 21st Amendment inadequate as a basis for imposing in-state location requirements on wineries shipping to consumers. Nonetheless, careful reading of the majority opinion strongly suggests that North Dakota stands only for the right to require a three-tier system, and not a right to refuse distribution licenses to out-of-state wholesalers.
Costco has already resulted in a statutory change, granting out-of-state domestic manufacturers essentially the same rights as wholesalers within Washington. A similar suit is reportedly in preparation for Oregon, possibly couched broadly enough to include non-manufacturing suppliers, and another Texas suit, with a multi-state wholesaler plaintiff, is rumored.
Under Granholm, a successful plaintiff can only hope to level the playing field. The Costco court leveled down, on the theory that opening the state�s borders would be more disruptive to the entire regulatory system than would ending the local producers� self-distribution privilege -a ruling that would have put many local wineries in a serious bind had the legislature not leveled up before it became effective. A similarly inclined court could solve the Granholm problem in Wine Country by invalidating delivery rights of local retailers, leaving a legislative fix dependent on state politics. It would, however, be difficult to imagine a decree invalidating the right of local wholesalers to distribute, an activity that lies at the heart of nearly all regulatory schemes in the country. Thus, a win in court by an out-of-state wholesaler plaintiff could create a national market in supplying the retail trade and leave little room for legislatures to level down.
The role of retailers
April 10th, 2006
Pending court cases in Washington and Texas will set precedent throughout the country for determining the role of retailers in the world of wine shipping. Before digging in, let’s start with a terminology summary:
Direct Shipment: The direct shipment of wine from wineries (suppliers) to end consumers. Wineries may ship via common carrier (UPS and FedEx) directly or through a third party logistics company (3PL) that ships on behalf of the winery.
Self Distribution: Shipment of wine from winery directly to retailers without passing through a distributor.
Three-tier: Three tier shipments are generally picked up at the winery by a distributor, who then delivers to retailers (liquor stores, restaurants, etc.).
Retail to Consumer: The shipment of wine from a retailer directly to end consumers.
In Washington, the Costco will likely set a precedent for self distribution. Costco challenged the three tier system for distributing wine and beer in Washington. The trial ended two weeks ago and U.S. District Judge Marsha Pechman is expected to rule on the case this week or next.
Costco argues that the three-tier system is effectively a state-mandated monopoly that restricts competition and thus consumer choice and artificially inflates prices via mandatory markups. They would like to cut out the “middle man” and allow wineries to self distribute directly to Washington retailers.
In Texas, the Specialty Wine Retailers Association is suing the Texas ABC for retail to consumer shipping rights. A powerful legal team that includes the infamous Ken Starr will argue that the Graholm decision that requires that states treat in-state and out-of-state wineries evenhandedly also applies to retail to consumer shipments. Here is a quote from the press release:
“A great state has done a real wrong, by engaging in an archaic form of economic protectionism that plainly violates the constitutional rights of citizens. As the U.S. Supreme Court made clear in its recent Granholm v Heald decision, the Commerce Clause requires that out-of-state wine retailers be treated the same as in-state wine retailers,” said James Shannon, partner of Kirkland & Ellis. “Rather than abide by the U.S. Constitution, however, Texas apparently has decided to favor the interests of its powerful liquor lobby, by seeking to prevent out-of-state wine retailers from delivering wines directly to Texas consumers. That unconstitutional decision also punishes Texas consumers, who are made to pay more for wine and have a lesser selection of it,” he added.
These two cases will set landmark precedents that will likely spur another flurry of legislative and judicial activity and further complicate the wine shipping landscape. We’ll be sure to keep a close eye on both cases and their potential impacts.
Court cases left and right
April 6th, 2006
We’ve seen a lot of activity over the past two weeks in the court room that will have some big impacts on the direct shipping landscape. We’re going to take a look at recent activity in Washington, Texas, Minnesota, and Maryland in the next few days.
Hawaii moves to end reciprocity
March 7th, 2006
Two similar bills would create a limited direct model in Hawaii, which currently has reciprocity with 13 other states. The proposals are similar to the laws established in New York, Connecticut, and Texas with a permit requirement and a per customer limit of 24 cases per individual per year.
Flip-flop by Rendell gives hope to wineries
February 22nd, 2006
Earlier we noted that Pennsylvania Governor Rendell opposed direct wine shipments because they would increase the chance that minors receive alcohol. After taking a lot of heat for that “colossal lie”, Rendell changed his tune and is now saying that it’s all about state revenue. “The Pennsylvania Liquor Control Board, which manages the state’s 640 liquor stores, generated $373.6 million in taxes and profits on $1.5 billion in sales during fiscal 2004-05.” That is 25% of sales.
Rendell is concerned about “slippage”, or lost revenues from wineries that might not report and pay taxes on shipments made directly to consumers. But this issue has been addressed by a number of different states, including New York, Connecticut, and Texas. States can require wineries to obtain a permit for direct shipping and can also charge a permit fee. They can collect excise taxes and sales taxes as they see fit and require wineries to report every shipment that they make into the state. They can even require the common carriers to get a copy of the direct shippping permit from each winery, collect an adult signature on delivery and report all shipments that they make from every winery, listing the permit number. The state can revoke the direct shipping permit of any winery in violation of the rules.
New Hampshire, New York, Connecticut, and Texas have proven that allowing direct shipments while preventing the sale of alcohol to minors and gaining revenue in the process are not mutually exclusive concepts.
Read more about PA here.
