Ignorance, Bias, Hipocrisy, Self Service—Wine Wholesaler Style
It's so rare that opponents of regulated consumer access to wine are so willing to demonstrate their ignorance, bias, hypocrisy and self serving intentions. Yet, thanks to Paul Mabray's VinTank interview with Wine & Spirit Wholesalers Association President Craig Wolf we get more than a glimpse into these commonplace foibles.
In the interest of clearing up fallacies, setting the record straight, correcting historical inaccuracies, and giving my readers a glimpse into the sometimes bizarre conclusions and positions of wine wholesalers who oppose regulated consumer access to wine, I offer a very short response to some specific statements of Mr. Wolf.
1. "The 21st amendment gave states the authority to create alcohol policy, largely unfettered, by the courts"
The 21st Amendment did no such thing. In fact, the 21st Amendment makes no mention of courts of any kind. The 21st Amendment repealed national Prohibition and gave the state the right remain dry or go wet under their own set of laws. However, nothing in the 21st Amendment comes close to suggesting that state alcohol laws are exempt from judicial oversight or may violate the U.S. Constitution.
2. "The problem with litigation is…it creates uncertainty. You don’t know how a judge is gonna come out with alcohol policy."
Actually, litigation creates certainty. After a judge rules and after all appeals have been played out, one generally has absolute certainty on what's legal or Constitutional and what's not. The fact that you don't know how a judge is going to come out with alcohol laws only means you aren't clairvoyant.
3. "At the state legislative level…the representatives of the people of the states make the decisions, not an elected judge making a decision for alcohol policy for an entire state."
Judges don't make any policy. They tell states what kinds of policies are unconstitutional when there is a dispute. Once a judge makes this declaration its up to the state legislature to fashion laws that comply with the U.S. Constitution. This happened after the Granholm Supreme Court decision that ruled state-based discrimination in wine shipping laws was unconstitutional. It was the state legislatures that then corrected their laws. In fact, it was wholesalers who, after the Supreme Court decision, went to the state legislatures to argue that no shipping should be allowed, but rather all wineries should be at the mercy of wholesalers to introduce their wines to market.
4. "The 21st amendment wasn’t enacted in a vacuum. It was enacted because of the problems states had enforcing their laws pre-Prohibition"
No. The 21st Amendment was enacted because Americans tired of Prohibition and because repealing it would have a significant positive impact on the then depressionary economy. The fact is, the 21st Amendment simply allowed states to operate exactly as they were operating just prior to Prohibition's onset.
5. "[HR 5034] should be passed because we want to basically make GRANHOLM the high level watermark for this type of policy [Direct Shipping]. And let states make their decisions based upon GRANHOLM but no further."
Everyone understands that Wholesalers want THEIR IDEA OF WHAT GRANHOLM MEANS the basis upon which state direct shipping laws are judged. The problem is that the Wholesalers idea of what Granholm means IS WRITTEN INTO HR 5034. If passed is would allow laws that descriminate against winery direct shipping in effect and it would allow states to discriminate against wine merchant direct shipping in any way they want—essentially stripping wine merchants of their commerce clause protections against descrimination. No Congress and no Founders ever imagined such a thing every coming into being.
6. "we don’t believe that the [Supreme Court] decision [Granholm v. Heald] at all created any type of authority for retailers to go outside the system."
In other words, the Wholesalers believe that some un-noticed, un-written, magical disappearing set of words that exist no where in the Constitution, in the Granholm decision, in its 21st Amendment or in any Congressional act tells us that PRODUCERS can't be descriminated against, but WINE MERCHANTS may be descriminated against? HUH?
7. "The bill [HR 5034] has been characterized as the monopoly protection act, and you know, we take offense with that. We certainly disagree on policy on the issue, but to somehow imply that wholesalers are monopolizing the market…is absurd."
Incorrect. Actually HR 5034 is commonly referred to as the "Wholesaler PROTECTION Act".
8. "So what happens is, when you open the door [to regulated direct shipment of wine], you create a shadow market – a black market, if you will – of product that cannot be traced or monitored."
Only if you want to. It's easy to stop. New Hampshire, for example, has a policy where once they see an unlicensed winery or retailer shipping into the state, they tell the common carriers about it and the common carriers are fined if they deliver another package from this source. There are simple fixes to these issues. But addressing the issue with common sense doesn't seem to be the goal of Wholesalers. The goal is to keep as much wine and profits flowing through wholesalers as possible, despite the burden that restrictive system places on wineries, consumers, retailers and regulators.
9. "What’s going to happen is…some kid at college is going to order a bottle of Everclear, they’re gonna put it in their punch, kid’s gonna get drunk, go out and kill somebody. And then, the regulators are gonna look and this and go, ‘where was the industry on this issue?"
This scenario is far more likely to occur with a minor getting their liquor from a brick and mortar store. Why are the Wholesalers not calling for the Brick and Mortar sales channel to be completely shut down? (That's a rhetorical question).
10. "And the fact is that UPS and FedEx usually can’t distinguish, you know when the boxes come through, who is shipping and who is not."
This must be news to UPS and FedEx. Can it really be that the drivers don't see they are at a wine or liquor store or winery or wharehouse with cases and cases and cases of alcohol? This statement is either a result of ignorance or duplicity. But it's most definitely insulting to FedEx and UPS.
11. "If you’re a state like Delaware for instance, and you allow direct shipping from out of state, how are you going to possibly regulate 50 states’ worth of wineries and retailers? You can’t do it?"
Yet somehow their neighbor, New Hampshire, has found a way to do it just fine. Is Mr. Wolf intentionally insultng Delawarans.