This blog was last updated on July 23, 2026
Direct-to-consumer (DtC) shipping of alcohol by retailers has been a persistent issue in recent years, commanding the attention of numerous courts (and blogs) as they seek to determine how exactly this market should work.
The question has never been whether retailers should be allowed to avail themselves of DtC shipping services (that is, to use third-party carriers like FedEx and UPS to fulfill remote orders). Rather, it has always been a matter of which retailers are eligible for this permission: only instate retailers, or do states also need to make it available to out-of-state retailers?
While about a dozen states do permit shipping by out-of-state retailers, many more have adopted rules that allow shipping only by in-state retailers, leading to the series of lawsuits seeking to make retailer shipping available nationally.
So far, proponents of national DtC shipping by retailers have not had much success in court, with almost every case being ruled in favor of the state and allowing their instate-only shipping laws to stay in effect. However, a recent update in one case has the potential to bring resolution to the entire issue—or make everything much more confusing.
Remind me, what’s this about again?
In the seminal 2005 case, Granholm v. Heald, the Supreme Court ruled that New York and Michigan laws that permitted DtC shipping only by instate wineries was unconstitutional under the Commerce Clause, as they improperly and discriminatorily gave a benefit to instate businesses that was denied to similar out-of-state businesses. Going forward, if a state was to allow consumers to receive direct shipments from wineries, the state then must provide wineries from across the country equal access to that market. Concerns that states had as to the safety of the DtC market could be relieved through licensing, age verification, tax payment, and reporting requirements on shippers. From this ruling (and decades of lobbying in different states) emerged the modern DtC wine shipping market that we all know and enjoy.
However, since Granholm centered around shipping by wine producers, it has been an open question whether its principles apply to other parties. While brewers and distillers have been able to claim equal treatment based on their general similarity to vintners, retailers, as members of a different tier and generally not federally regulated, have struggled to make their claim.
Not that they haven’t tried. Litigation on this issue has been raging for years across numerous states and going up and down the appellate process. The Supreme Court has been petitioned to review retailer DtC shipping cases at least twice, though so far without success.
Largely, these cases have been ruled in favor of the states, though the rulings themselves have often lacked a measure of legal scrutiny that they would seem to merit. Many courts ruled for the states on procedural grounds, that the plaintiff retailers lacked standing (due to a lack of perceived harm) or failed to state a proper course of relief (that is, they asked the court to do things it could not do, such as draft new statutory law). Others have determined that there is no discrimination as the out-of-state retailer could simply open a new storefront in-state and thereby get access to the DtC market—even though this kind of reasoning has been definitively deemed improper in Commerce Clause litigation.
Even where courts have found the plaintiffs have standing and even when they have determined there is discriminatory effect, most have still ruled for the states on the grounds that the discriminatory shipping laws are necessary to preserve their three-tier systems. This is despite the facts that 1) courts rarely press states on their evidentiary claims as to the sanctity of their three-tier systems and 2) shipments by retailers will have gone through a three-tier system (if not the one for the state at issue).
As such, discriminatory retailer shipping laws, which mean that consumers are not granted access to wines not sold in their state, have remained pervasive.
What is the latest?
In the last two months, there have been three major actions related to retailer DtC shipping that seem to be forcing a decision point on the whole issue.
The first was the ruling by the Sixth Circuit Court of Appeals that Ohio’s instate-only retailer DtC shipping law is, in fact, unconstitutionally discriminatory and not justified under the evidence provided by the state as closely tied and necessary to maintaining its primary 21st Amendment interests, namely public health and safety. As such, the court ordered further review for Ohio to correct its law to remove the discriminatory effect by enabling access to DtC shipping for out-of-state retailers (or denying shipping permission to all retailers).
The second was the rejection by the Supreme Court of two separate appeals from the Seventh and Ninth Circuit courts made by retailer plaintiffs after those courts had ruled in favor of seemingly discriminatory instate retailer-only shipping laws in Indiana and Arizona. While it is not a definitive ruling, when the Supreme Court rejects an appeal, it does mean that the lower court opinion is at least tacitly upheld.
The third was a real surprise, coming again from the Sixth Circuit court case. Rather than simply delay the unfavorable ruling by requesting an en banc hearing by the full circuit court or appealing the rulings by future district courts on how it would need to amend its laws, Ohio itself filed an appeal directly to the Supreme Court to review the Sixth Circuit court’s ruling.
What is most surprising about this decision is how both uncertain and decisive a ruling by the Supreme Court could be.
If the Court takes the case and decides that the Sixth Circuit was in error and that Ohio is justified in its seemingly discriminatory law, then the state’s gamble will have paid off.
However, if the Court takes the case and upholds the Sixth Circuit’s ruling, then the state will have scored a huge own goal, especially given how loath the Supreme Court has been to pick up these cases. And there is reason to believe that the Court just might rule in favor of interstate retailer shipping given how they ruled in 2019’s Tennessee Wine & Spirits Retailers Ass’n v. Thomas.
But the biggest unknown will be if the Court doesn’t take the case. This will mean that the Sixth Circuit’s ruling will stay in effect and that, at least within the states covered by the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee), interstate DtC shipping by retailers will be the law, while in other circuit court jurisdictions like the Seventh and Ninth, discriminatory instate-only retailer shipping laws will be permitted. This situation—a circuit split—is anathema to the federal system in the U.S. as it creates different standards for different parts of the country, making the Court’s rejection of the appeal less likely.
Perhaps Ohio is banking on the Court’s rejection of the Seventh and Ninth Circuit appeals as signaling a mindset that instate-only retailer shipping is legitimate. Or perhaps the state misjudged the Court’s reasons. Either way, proponents and detractors of interstate retailer DtC shipping are eagerly awaiting a decision by the Court in the fall on whether to take the case and potentially settle this matter once and for all.
FAQs
1) What is the latest with retailer DtC shipping legal cases?
Three recent developments are moving the issue toward a potential resolution. The Sixth Circuit Court of Appeals ruled Ohio’s instate-only retailer shipping law unconstitutionally discriminatory. Separately, the Supreme Court declined to review appeals from the Seventh and Ninth Circuits, leaving instate-only laws in Indiana and Arizona standing. Ohio then made a notable move, appealing the Sixth Circuit ruling directly to the Supreme Court rather than pursuing standard procedural options. The Court is expected to announce whether it will take the case this fall.
2) What is at issue with the litigation?
The central question is whether states that permit retailer DtC shipping must extend that permission equally to out-of-state retailers. The 2005 Granholm v. Heald ruling established that states cannot favor instate wineries over out-of-state ones — but courts have long debated whether that principle extends to retailers, who occupy a different tier of the distribution system. Out-of-state retailers have challenged instate-only shipping laws as discriminatory under the Commerce Clause. Courts have largely sided with the states, though often on procedural grounds rather than substantive legal analysis.
3) What can we expect next and when?
A Supreme Court decision on whether to hear Ohio’s appeal is expected this fall. A refusal would leave the Sixth Circuit ruling in place, making interstate retailer DtC shipping the standard across Michigan, Ohio, Kentucky, and Tennessee — while instate-only laws remain valid in states under the Seventh and Ninth Circuits. That kind of inconsistency across federal jurisdictions, known as a circuit split, historically draws Supreme Court intervention. Taking the case would open the door to a nationwide resolution for the first time.