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21st Amendment Litigation: Insights on Commerce Clause, Antitrust, and Direct Shipping in 2013

This comprehensive overview discusses key litigation related to the 21st Amendment, focusing on the Commerce Clause, antitrust issues, and direct shipping regulations for alcoholic beverages. Key topics include the Granholm decision's impact on producer-to-consumer direct shipping, challenges concerning residency requirements, and significant state legislation affecting the alcohol industry. Additionally, it covers recent developments and cases across various states, including Missouri, Indiana, and Tennessee, providing insights into the evolving legal landscape regarding alcohol distribution.

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21st Amendment Litigation: Insights on Commerce Clause, Antitrust, and Direct Shipping in 2013

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  1. 21st Amendment Litigation 2013: Commerce Clause, Antitrust, and More Deborah A. Skakel, Esq. Dickstein Shapiro LLP Steve Gross Wine Institute Walter A. Marston, Jr., Esq. Marston & McNally, P.C. NABCA 20th Annual Legal Symposium on Alcohol Beverage Law & Regulation March 12, 2013

  2. A very brief refresher on Granholm…. • “Pure” Granholm • Producer to consumer direct shipping • Facially discriminatory statutes • Facially Neutral Statutes • Gallonage caps • On premise/In person requirement • Retail to Consumer (“Retail Direct”) • Applicability of Granholm • Second vs. Fifth Circuits

  3. Residency Requirement Challenge • Prior Cases in Texas and Kansas • Missouri: SWS Litigation Plus • Applicability of Granholm • Amici include Missouri Beverage and State AGs • “Related” litigation: Pernod v. Major Brands & Glazer’s • Recent legislation: S365 (community of interest concept) • Indiana: SWS Litigation Plus • SWS litigation leads to AG Opinion and ATC change of position • Recent legislation: H1259 (increase duration from 5 to 6 years) • Tennessee AG Opinion No. 12-59 (6/16/2012)

  4. Sales in Grocery & Convenience Stores • Maxwell’s Pic-Pac Kentucky Litigation • Equal Protection, not Granholm/Commerce Clause • Legislative Initiatives • Kentucky H310 (separate package store license; separate entrance for premises required; grandfathering) • Tennessee S837/H610 (allows towns to hold referendums) • Oklahoma (2012’s Initiative Petition No. 396 withdrawn; petition to be refiled in Fall 2013 for Fall 2014 General Election) • Kansas, Colorado, New York, Maryland, and New Jersey Legislation

  5. Developments in Third-Party Provider Area • California’s 2011 Industry Advisory: Status • Virginia Fulfillment Warehouse Regs • Legislative Initiatives • North Dakota – S 2147 (allows use of fulfillment houses in wine direct shipping law) • Maryland – H 1420 & S 990 (“prohibiting an order to be transmitted to the permit holder by a retailer, a wholesaler, or any other third party, including a marketplace site on the Internet in which sellers offer products to customers”) • Nebraska – L 230 (limit sales to manufacturers (“person”) attempting to block some portal programs) • New York SLA 1/17/2013 Hearing • Amazon: Business model now used in 15 States and DC

  6. Post and Hold/Quantity Discount • Summary of Cases • Battipaglia (2d Cir. 1984) • Costco (9th Cir. 2008) • TFWS (4th Cir. 2009) • District Court decisions in Massachusetts (1998) and Pennsylvania (1999) • Legislative Initiatives • Connecticut – S749 (elimination of 10% minimum markup) • Interplay Between Quantity Discounts & Cooperative Buying • Washington • New York • Enforcement • NY SLA December 2012 historic wholesaler license suspension

  7. Unorthodox Use of Preemption Argument • Miller Coors v. Chesbay Dist. litigation: Short-lived, but results in legislation in Virginia • Recent SCOTUS preemption cases (non-21st Amendment): Court appears reluctant to expand Commerce Clause

  8. On The Horizon • Developments re: craft brewers and artisan distillers • New York’s first “Wine, Beer and Spirits Summit”: “Regulatory reforms” • VA Winery Distribution Co. • Use of gallonage cap concept outside direct shipping (tax structure (NM), franchise law applicability (MI), and grocery store sale privilege (AR)) • Further consolidation • A-B In Bev merger, DOJ action, and proposed resolution • Direct shipment data: Lessons learned • MD Comptroller December 2012 “Study on the Impact of Direct Wine Shipment” • VA direct shipment data

  9. VIRGINIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROLDATA ON WINE IMPORTERS AND WINE SHIPPERS

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