Challenge to The 3-Tier System Inevitable as Illinois Legislature Introduces Bill to Revoke Anheuser’s Stake in City Beverage
Illinois could soon find itself again at the center of the
ongoing national debate over the three-tiered system. And that debate will involve the same two
parties as last time.
I’m sure you all recall the 2010-2011 Anheuser Busch case in
Illinois where a Federal District Court found that a previous iteration of Illinois’ Liquor Control Act
violated the U.S. Constitution’s Commerce Clause by allowing some brewers to
distribute if they were in-state brewers and keeping out-of-state brewers from
distribution. The decision came as a
result of a suit between the Illinois Liquor Control Commission and Anheuser
Busch over Anheuser’s desire to purchase City Beverage, a distributor that it already
owned a minority share of.
The legislature responded with the creation of the Craft
Brewer’s license which gave small brewers the ability to self-distribute and
prohibited large brewers from the privilege.
We wrote about the Court’s denial of the $1.6
Million in attorneys’ fees that Anheuser sought from the State here.
In the end, the Illinois Liquor Control Commission ended the
fiasco by ruling last October that Anheuser-Busch could retain a minority
stake-hold in Chicago’s City Beverage.
You can read that opinion here.
The State legislature is taking up that debate where,
apparently, the Illinois Liquor Control Commission would not. They’ve introduce a bill that would amend the
Liquor Control Act to keep the Commission from issuing a license to any brewer
with an interest in a State distributor and that will expressly revoking any
such ownership interest between a brewer and a distributor which already exists
in the State.
There are currently two tracks for this bill which may make
it move faster, one in the House and one in the Senate. Both bills are identical. The House Bill – HB
2606 – was introduced
on February 21, 2103, and is currently with the rules committee. The Senate Bill – SB
1855 – was introduced
on February 15, 2013, and is currently with the Executive.
The portion of the bill adding the language that will revoke
any existing license where the licensee is a brewer with an interest in a
distributor starts off with a preamble that appears geared towards any eventual
challenge:
The General Assembly hereby restates its commitment to the
primary purpose of the Liquor Control Act of 1934, which is to protect the
health, safety, and welfare of the People of Illinois through the sound and
careful control and regulation of the manufacture, distribution, and sale of
alcoholic liquor through independent licensees in a 3-tier regulatory system.
The State’s 3-tier regulatory system is designed to prevent a manufacturer or
non-resident dealer, if the non-resident dealer is also the manufacturer of
alcoholic liquors, including a partnership, corporation, subsidiary, limited
liability company, trust, agent, affiliate, or other form of business
enterprise thereof, from exercising vertical integration between a manufacturer
or non-resident dealer, if the non-resident dealer is also the manufacturer of
alcoholic liquors, and a distributor, importing distributor, or retailer
through any ownership interest or through control.
Again, nothing in this preamble actually says how on earth
the “3-tier regulatory system” or the absence of the vertical integration they’re
so worried about protects the “health, safety, and welfare of the People. Or how it effectuates sound and careful
control… or how sound and careful control protects the “health, safety, and
welfare”… you get my point. It’s
verbage. And these platitudes might have
flown through courts for years as enough to hold that this type of system has a
rational basis… but
that’s starting to change. People
are wising up and rejecting arguments based on “just-so-stories”
about how problems like tied-houses from the 19th and early 20th
centuries limited consumer choice.
The idea that 100 years later we couldn’t effectively legislate and then
guard against any potential threats like monopolies doesn’t hold water when we
have laws that guard against monopolies.
So, what happens when a long-running relationship and business
enterprise – heretofore allowed – is deemed verboten by an amended law… An amazing constitutional case, most likely. Should this bill be enacted, and should
Anheuser-Busch decide to stand up for itself we’re in for one heck of a show.
