I wanted to give the Berserkers an update on the status of wine shipping here at the beginning of 2018 and also thank the Berserker community for your input and support over the past year. I’ve been contacted by a large number of you with questions, comments, offers of help and insightful intelligence. Thank you!
WINERY SHIPPING
The logistics of winery shipping are in very good shape. With the Granholm decision as the basis of change, wineries may now ship to nearly every state, save a few in the Bible Belt. My expectation is that over the next 3 or four years, some of these states will open up also.
RETAILER SHIPPING
Due to wholesalers putting pressure on State alcohol agencies, those agencies have spent 2016 and 2017 putting pressure on common carriers to the point that FedEx and UPS have been very aggressive in their commitment to not deliver retailer wines to any but the 14 locations where it is explicitly legal: AK, CA, OR, NV, NM, ID, ND, NE, WY, LA, VA, WV, DC, NH.
That said, many retailers are creative in how they are working to get wine to clients in the wake of this crackdown.
LAWSUITS
Lawsuits challenging discriminatory laws are now working their way through federal court in MO, MI and IL. The goal is to bring a case to the Supreme Court. My guess is that the MI case will progress the fastest. However, it will be a good year to a hear and a half before any of the cases make their way to the point where the state or the plaintiffs are set to appeal to the Supreme Court.
In every case the states are defending their admittedly discriminatory laws by arguing that 1) Granholm was a narrow decision in which the principles non discrimination only apply to producers and products, 2) that because retailer delivery is inherent to what retailers do within a three-tier system and not an exception to three-tier traditions like winery shipping, restrictions against shipments from out-of-state retailers that violate longstanding Commerce Clause jurisprudence are merely part and parcel of an “unquestionably legitimate” three-tier system and therefore allowed under the 21st Amendment.
LEGISLATION
Legislation that would legalize retailer shipping has been filed in New York, Massachusetts and Mississippi. We expect three or four other pieces of legislation to be filed this year. It is absolutely clear that the extent to which any of these bills will be successful is dependent on 1) consumer involvement, 2) media coverage and 3) ongoing lobbying efforts.
CONSUMER INVOLVEMENT
Consumer involvement in the past has been directed and/or aided by Free The Grapes, an organization funded by the wine industry. Free The Grapes does not have an interest in helping consumers gain more access to wine shipments from retailers. In fact, wineries and their representatives have regularly agreed with wholesalers that retailer shipping should be stripped from bills that in their original form would have authorized both winery and retailer shipments.
WineFreedom.org has been formed to help consumer weigh in on retailer shipping issues. In the past 4 months, 1,000+ consumers across the country have joined Wine Freedom with very little promotion other than social media efforts. 2018 will be the year that much more emphasis is put on exposing the WineFreedom.org tools to consumers.
I CANNOT EMPHASIZE NEARLY ENOUGH HOW IMPORTANT it is to spread the word about WineFreedom.org among motivated consumers. Currently, at WineFreedom.org, consumers can send emails to lawmakers in NY, MS and MA asking them to support bills in those states. In addition, consumers in every other state where retailer shipping is banned can send emails to their representatives asking them to support expanded shipping rights. IT LITERALLY TAKES LESS THAN 30 SECONDS FOR A CONSUMER TO SEND SUCH A LETTER!!
ENFORCEMENT EFFORTS
Enforcement efforts by state alcohol agencies have and are ramping up. Currently, Illinois and Mississippi are sending out cease and desist orders to retailers across the country. The threat is criminal prosecution, which is not easy for a state to carry out, but not unlikely either. I would not be surprised to see a retailer be ASKED to be sued in federal court by a state in order to get another case in front of a federal court.
THE NATIONAL ASSOCIATION OF WINE RETAILERS
NAWR grew their membership by 40% in 2017. It will grow more in 2018. However, it’s capabilities pale in comparison to wholesalers, who are the primary opponents of consumers receiving wine from out-of-state retailers. In the next few days, a report will be issued that shows that wholesalers have spent over $100,000,000 on campaign contributions to state political candidates and initiatives over the past five election cycles. Consumers and retailers will not fight against this by attempting to outspend for the simple reason that it is not possible.
There we go. I’m happy to answer any questions by the Berserkers. But I want to thank you all once again for your interest in this issue, your input and your help over the past year and beyond. There is A LOT of “institutional knowledge” on this issue among the Berserkers.
If there is one thing that every Berserker can do in 2018 to help the effort to open more states for consumer shipments, it would be to use WineFreedom.org to send letters to your representatives, to sign up for alerts and to promote WineFreedom.org to your friend via social media and email.
Tom Wark,
National Association of Wine Retailers