This blog was last updated on September 15, 2022
In another blow to proponents of expanded direct-to-consumer (DtC) shipping of wine, a court in the Southern District of Ohio earlier this week ruled in favor of the state, rejecting plaintiff’s claims that Ohio’s DtC shipping laws for retailers were discriminatory and harmful to consumers.
What happened in this case?
The case, Block v. Capera (2:20-cv-03686, Southern District of Ohio), involved a Chicago-based wine retailer and an Ohio resident who alleged they were harmed by Ohio’s laws, which permit in-state retailers to ship wine while denying that permission to out-of-state retailers. The plaintiff’s argument noted the deleterious market effects of Ohio’s laws, which discriminate on their face against out-of-state interests, and the potential loss to the Ohio resident, who cannot access the many wines that are sold somewhere in the U.S. but not in Ohio.
However, the Ohio court rejected these claims, granting the state’s motion for summary judgment, putting an abrupt stop to the case. Summary judgment is an action commonly taken by courts on a finding that there is “no genuine dispute of fact” so that a judgment can instead be made on a “matter of law.” That is, because the disputants do not disagree as to what happened to cause the case to be brought in the first place, the judge needs only to look at what the law says to make a ruling. In this case, the judge determined that the law indeed does support Ohio’s ability to discriminate against out-of-state retailers.
Notably, the summary judgment motion in this case did not include much of a discussion about Ohio’s law or its constitutionality. Instead, the motion essentially decided that this argument had already been decided by the Sixth Circuit Court of Appeals, which found in favor of a similar discriminatory retailer DtC wine shipping law in Michigan in the 2021 Lebamoff v. Whitmer case.
Why did the court rule this way?
As a subordinate court to the Sixth Circuit, the court in this latest case was probably judicially correct in adopting the previous ruling. It is still disappointing, though, that this court almost entirely refrained from taking the plaintiff’s arguments seriously, instead cursorily adopting the position that under the 21st Amendment, any laws that states enact regarding their alcohol markets is valid. This is especially disheartening as the original Sixth Circuit ruling that this court takes as granted similarly failed to address the actual concerns of the consumers and retailers who sued to begin with.
The summary judgment motion does point out the rigorous licensing and auditing that Ohio retailers must undertake to operate in the state. Unfortunately, it then assumes as truth that, with out-of-state delivery of alcohol, “ ‘the least regulated (and thus the cheapest) alcohol will win.’ ” (Baker, p. 24, quoting Lebamoff, 956 F.3d at 872).
This assumption ignores the fact that no state has an unregulated alcohol market—retailers everywhere must be licensed and submit to local audits. While Ohio does have price controls that might make a given bottle of wine slightly more expensive on the shelf in Cincinatti than in Chicago, this claim also ignores the costs associated with a Chicago retailer shipping their products to Ohio residents, including freight and the costs of getting licensed by Ohio and paying taxes to Ohio (if Ohio were to follow its practice for how out-of-state wineries and breweries can ship DtC into the state).
Further, it ignores the fact that the current DtC wine market is dominated by more expensive products (the average bottle price of a DtC shipped wine hovers around $40 versus around $11 for wine purchased in retail stores) and by products that are not widely distributed. An Ohio resident is not going to pay shipping and handling and wait a week to save a couple bucks on a bottle of Yellowtail they can easily find down the street—they are looking to find the rare 100-point Burgundy that may be purchased in a few select import stores in the largest of markets but is not available in Ohio.
Nevertheless, the court’s ruling here is determinative in its support for Ohio’s current laws. While this is only one case among many active across the country, and the plaintiffs may appeal the ruling to a higher court, admittedly proponents of retailer DtC shipping of wine have not had much success in these cases.
At a certain point, it seems that if states will keep winning these cases as a matter of law, the better course of action would be to change the laws and grant retailers similar DtC shipping permissions as are available to manufacturers. The market for DtC shipping by wineries has proved time and again to be popular, profitable and fully capable of adhering to state regulations, like licensing, preventing sales to minors and paying taxes, and there is ultimately little to the argument that retailers cannot also meet these standards if given the chance.
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