demanding challengers prove otherwise. Had this version passed, it would have become impossible to challenge any state alcohol law in court.

But the language was so blatantly anti-competitive that the bill’s sponsor, Rep. Bill Delahunt (D-Mass.), offered a more modest draft for full Judiciary Committee consideration on September 29. It removed provisions shifting the burden of proof to challengers of state laws and the unlimited justifications for state action.

Yet it maintained the provision breaking congressional silence, changing only the second sentence in Section 3(b) to read: “However, state or territorial regulations may not intentionally or facially discriminate, against out-of-state or out-of-territory producers of alcoholic beverages in favor of in-state producers or in-territory producers unless the State or territory can demonstrate that the challenged law advances a legitimate local purpose that cannot be adequately served by reasonable nondiscrminatory alternatives.”

This version appears much less problematic and in line with Granholm. Except, it only applies to producers and it appears to validate state laws that are indirectly or allegedly “unintentionally” discriminatory. Courts would then have to decide how to apply this new standard.

“Direct-to-consumer shipments will never drive a wholesaler out of business, but the deregulation it is fostering will,” noted Craig Wolf of the Wine and Spirit Wholesalers of America in 2007. [iii]

Indeed, wholesalers recognize that Granholm has advanced a deregulatory trend. For example, Richard Mendelson, wine lawyer and author of From Demon to Darling: A Legal History of Wine in America, notes: “Within two and half years of Granholm, eleven states had leveled up, and none had leveled down completely … Those states had to open their borders to all direct shipping or close them entirely.”

Tom Wark of the Specialty Wine Retailers Association has noted that the new version of HR 5034 will open the door to a host of directly discriminatory state regulations

mong the “fictions” allegedly being perpetrated by opponents of the new bill HR 5034 is one that reads, “Fiction: This bill will ‘overturn’ the 2005 Granholm decision.” A new public relations website — HR5034.org — hosted by the National Beer Wholesalers Association (NBWA), — addresses this issue and a number of other alleged “fictions” they claim are perpetrated by bill opponents.

This assertion strikes out at wineries and other producers who argue that HR 5034 would essentially override the decision in the Granholm v. Heald. That case invalidated discriminatory state laws that banned direct-shipping from wineries outside the state, while allowing in-state wineries to ship.

Wendell Lee, (General Counsel of the Wine Institute), expressed such concerns in Wine and Spirits Daily: “The scope of the bill [HR 5034] gives to the states the power to pass laws that totally disregard the Commerce Clause or federal statutes,” he notes. Yet the NBWA website says, “[O]nly the Supreme Court itself or a constitutional amendment can ‘overturn’ a Supreme Court decision.”

If Congress is silent, the court applies a legal doctrine known as the “dormant commerce clause.” It bars state laws that directly or indirectly apply differential legal treatment to in-state and out-of-state entities.

There are some limited exceptions. For example, states can pass laws that impact commerce if they can demonstrate that the law has “a legitimate purpose” (such as protecting public health) that it could not meet “in a less restrictive way.” [i] For example, in 1986, the Supreme Court allowed the state of Maine to ban imports of live fishing bait because of the potential to introduce new parasites into the state fisheries. [ii]

Granholm was decided on the basis of congressional silence. Accordingly, the Supreme Court held that states may not impose laws that apply “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter,” unless the state could not meet its purpose in a less restrictive way.

The second sentence appears to provide some protection for Granholm, but Section 3(c) of the bill sets standards that essentially make all state regulations justifiable. It also would have directed the courts to assume that all state alcohol laws are valid,