It Is Your Problem..Now Fix It!!

State to resident wine lover: Yes, you may buy wine from an out-of-state winery, but you must first visit that winery.

Wine Loving Resident to State: But, I just want the wine, I don’t want to visit them; plus, wouldn’t flying to Oregon add a bit of expense to the case of wine that I want.

State to resident wine lover: That’s not my problem.

Wine Loving Resident to State: We’ll see about that when we meet in Court.

Court to State: Yes, it is your problem! Now fix it.

Thus is a truncated conversation that went on between the State of Indiana, Indiana wine distributors, Indiana wine lovers and a Michigan winery in a case the reconfirmed what a Kentucky Federal court said earlier this year: requiring face-to-face transaction first before a consumer can have wine shipped to them amounts to economic protectionism on the part of the state.

As Judge Tinder described the plaintiff’s case, the wineries "contends the rules governing this scheme effectively prevent it,
and other out-of-state wineries, from competing in the direct sale market in Indiana.
The Consumer Plaintiffs contend they are barred from obtaining many wines they desire
because of the impracticality of traveling to out-of-state wineries to purchase these
wines or to complete the “face-to-face” transaction needed to place further sales over
the Internet, by telephone, or by mail."

The response by the State of Indiana and Indiana wine distributors, again according to Judge Tinder, was to "contend the laws do not
discriminate against out-of-state wineries. They assert that the laws are needed to
prevent the sale of alcohol to minors and that the State’s interest in protecting its youth
outweighs any incidental burdens on interstate commerce."

Judge Tinder agreed with the plaintiffs and struck down the law as an unconstitutional violation of the Commerce Clause and particularly the "dormant" commerce clause that is inferred from the Constitution that  restricts states from interfering in the interstate
flow of goods.

The Judge also struck down a provision of Indiana law that barred any out-of-state winery that has distributor representation in any other state from obtaining a direct shipping permit in Indiana. The silliness of this provision goes beyond description.

Judge Tinder order that the Indiana direct shipping law not be enforced, meaning Indiana will eventually have to go back to the legislative drawing board.

There is an important take-away from this ruling by Judge Tinder and it is is observation that:

"Indiana’s current laws are not unique in their general outline…they protect
wholesalers from any substantial encroachment upon their hold over the wholesale wine
market in Indiana."


What we have here is another in a growing chorus of judges, regulators, citizens, and politicians that recognize the three-tier system for what it has become: an artificial structure for protecting wine distributors from competition.

The lawyers in this case were Alex Tanford and Robert Epstein, two men who have been involved in the judicial wine wars for many years and who have an abiding appreciation for consumer rights and the constitution. Congratulations to them.

Hat Tip to for initial coverage of the decision.


7 Responses

  1. razmaspaz - August 30, 2007

    Damn those activist judges. 😉 This gives me renewed hope for the Illinois situation.

  2. Dan Cochran - August 31, 2007

    I would like to think that this will eventually happen in PA, but the judiciary is just another cog in the Harrisburg consumer-and-taxpayer-hating machine.

  3. Mary B. - August 31, 2007

    Excellent news, Tom!
    Does this set a precedent for other states?

  4. Tom Wark - August 31, 2007

    It’s more a confirmation of what other states have said, namely that face to face transaction requirements are unconstitutional. Indiana must now go back and determine how it wants to rework its shipping laws.

  5. Mark Fisher - September 2, 2007

    Wine lovers in Ohio who weren’t paying attention when legislators slipped new wine-shipping language into the state’s budget bill in June are just now being notified by their wine clubs that they can no longer receive shipments, and they’re emailing me asking, “What happened?” Well, what happened is what usually happens when folks stop paying attention to what their legislators (and lobbyists who write the laws) are up to.

  6. Ron - September 2, 2007

    Hello Tom, Great info…..pretty sad state of affairs when you lose your rights…right in front of your face. Amazing what can get slipped by you.

  7. Tom Wark - September 3, 2007

    It’s pretty slippery out there.

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