Briefing completed in 8th Circuit case about out-of-state retailers shipping alcoholic beverages direct to in-state consumers [Missouri]. Mirrors ongoing challenges in 7th and 6th Circuits. Bonus: we’ve got the briefs for you.

We’ve yet to see any compelling arguments from States looking to protect their in-state monopoly and Commerce-Clause-Violative statutes that allow in-state retailers privileges of shipping and delivering liquor, wine, and beer to consumers without allowing out-of-state retailers to obtain those privileges. 

There are many companion cases working their way through courts across the country, this 8th Circuit Case – Sarasota Wine Market v. Missouri – resolved in favor of the State back in April of 2019.

Here is the link to our prior post about this wine shipping case – we wrote when it was dismissed that the wine connoisseurs, wine shops, and the wine broker that brought the suit would be appealing, and they have. The case is fully briefed.

From the parties’ briefs, here’s what this case is about:

Missouri law allows in-state retailers to sell and ship wine to consumers but prohibits out-of-state retailers from doing so. A Florida retailer claims this scheme discriminates against nonresidents in violation of the Commerce and Privileges and Immunities Clauses.

The District Court dismissed the Commerce Clause claim because Southern Wines & Spirits v. Div. of ATC, 731 F.3d 799 (8th Cir. 2013), had held that the 21st Amendment trumped the Clause and authorized states to limit liquor sales to residents only. However, Southern Wines is no longer good law after Tenn. Wine & Spirits Retailers Assoc. v. Thomas, 139 S.Ct. 2449 (2019), leaving the District Court’s decision clearly erroneous.

The District Court dismissed the Privileges and Immunities claim on the ground that citizens have no inherent right to sell liquor across state lines. This decision was erroneous because the Clause concerns privileges, not rights. Once Missouri has given its own citizens the privilege to sell liquor, it may not deny that privilege to nonresidents.

The main issue raised by the out-of-state wine stores and others looking to ship to in-state consumers are:

  • The ban on out-of-state retailers shipping to consumers (forcing Missouri to create an alcohol retail licenses on par with in-state retailers) violates the Commerce Clause because state alcoholic beverage laws are subject to the Commerce Clause’s non-discrimination principles and there is no evidence that Missouri’s discrimination against alcoholic beverage retailers is necessary to protect public health and safety.

The issues raised by the state are:

  • That the wine merchants lack standing because the wine store never applied for a license and the Privileges and Immunities clause does not apply to companies.
  • The state needs a three-tier system to keep tied-houses from occurring.
  • The state needs to be able to perform on-site inspections of alcohol retailers.
  • Tainted alcohol could come into the state if out-of-state retailers ship to consumers. 

The amicus, beer, wine and liquor wholesalers raise the following in favor of the state:

  • Tennessee Wine created a different test – “predominant effect” – rather than the strict scrutiny that was clearly applied in that case (this argument is complete hooey and the last desperate attempt of attorneys to try and claim something different occurred under Tennessee wine because they have no argument that they’d prevail under strict scrutiny). It’s so transparently incorrect that the state didn’t even make it, only the amici are making it.
  • Restricting the actions of out-of-state retailers in this fashion does not violate the Commerce Clause.
  • They also cite to the tired and non-scientific Rockefeller funded hit-piece “Toward Liquor Control” a joke of a pamphlet put together by Rockefeller’s goons to advance his interests under the guise of a “report.” But the screed was not premised on recognized principles of scientific inquiry or endeavor and was certainly not revised or edited as a peer reviewed study – it was written in 1933 at Rockefeller’s direction to try and keep the temperance movement alive.

The next step is for the 8th Circuit to set oral argument and allow these wine shipping advocates their day at the 8th Circuit.

Here are the briefs:

  1. The wine shop/broker/consumer opening brief arguing for greater access and choice in alcoholic beverage options for consumers
  2. The wine shop/broker/consumer addendum to their opening brief
  3. Missouri’s response brief arguing against greater access and choice in alcoholic beverage options by consumers
  4. Missouri’s addendum to its response brief
  5. The wine shop/broker/consumer reply brief 
  6. The National Beer Wholesalers’ and Missouri Beer Wholesalers’ amicus brief
  7. The Wine and Spirits Wholesalers’ amicus brief

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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