Here’s a bit of trivia to drop at your next wine tasting: the reason you can (or can’t) get your favorite Oregon Pinot or Finger Lakes Riesling shipped to your door has less to do with wine and more to do with a 230-year-old sentence in the U.S. Constitution about regulating trade between the states.
Meet the Commerce Clause. It’s not glamorous, but it’s the legal engine behind nearly every direct-to-consumer wine shipping fight in the country, including recent legal arguments happening right now over retailer shipping and also spirits shipping. Let’s break it down.
What Actually Is the Commerce Clause?
Article I, Section 8 of the Constitution gives Congress the power “to regulate commerce…among the several states.” On its face, that is talking about Congress’s authority. But courts have also read an implied flip side into it, known as the “dormant” Commerce Clause. This flip side is the idea that states generally can’t pass laws that discriminate against, or unduly burden, interstate commerce, even when Congress hasn’t acted.
What this means for wine lovers: a state can regulate alcohol sales within its borders, but it runs into trouble when its laws treat out-of-state businesses worse than in-state ones, just because they are out of state. A form of discrimination.
This is exactly the tension that landed at the Supreme Court in 2005, in a case wine lovers may be familiar with - Granholm v. Heald.
Where the Commerce Clause Met Wine
In Granholm v. Heald, the Supreme Court looked at laws in Michigan and New York that let in-state wineries ship directly to consumers, but blocked out-of-state wineries from doing the same.
The Court said: not so fast. That’s textbook discrimination against interstate commerce; the kind of protectionism the Commerce Clause exists to prevent. States have tried to defend these kinds of laws using the 21st Amendment, which ended Prohibition and gave states broad power to regulate alcohol. But the Court drew a clear line: while the 21st Amendment lets states regulate alcohol, it doesn’t give them a free pass to economically discriminate against out-of-state businesses to protect in-state ones.
The result is that states could still require licenses or permits, age verification, and other compliance, but there can’t be one set of rules for in-state wineries and a stricter, more discriminatory set for those outside of state lines. Granholm is the reason most of the DTC wine shipping landscape exists today, and its the case Free the Grapes! can point to each time an issue arises where a state may try to change their stance.
Why This Is Still In the News Today - Retailers and Spirits Fight On
Granholm was about wineries and their ability to ship to their customers’ homes. But the same Commerce Clause logic has recurred in two related battles.
Wine (and spirits) retailers. In 2019, the Supreme Court extended similar reasoning to retailers in Tennessee Wine and Spirits Retailers Association v. Thomas, striking down a durational residency requirement that made it nearly impossible for out-of-state retailers to get licensed in Tennessee. Since then, retailers in states like Arizona and Ohio have pushed their own Commerce Clause challenges, arguing that if wineries can ship across state lines, there’s no principled reason that retailers can’t too. These cases are still popping up and working their way through the courts, and the outcomes vary significantly by circuit.
Spirits shipping. Direct-to-consumer spirits shipping is where wine shipping was roughly two decades ago: a patchwork of near-total restriction. Most states don’t allow it at all, and the industry argument echoes Granholm almost word for word; i.e., if the Commerce Clause bars discrimination against out-of-state wineries, why should out-of-state spirits producers be treated any differently? Distillers and craft spirits producers are increasingly pushing for the opportunity to test that question in court and in state legislatures.
Why This Still Matters For You
None of this is ancient legal history; it’s the living thread under every “why can’t I get this shipped to me?” frustration. Every time a state legislature considers a shipping bill, or a court hears a wine, retailer, or spirits shipping case, they are wrestling with the same core question Granholm answered for wineries in 2005 - can a state protect its own businesses by discriminating against everyone else’s?
Free the Grapes! is proud of the success we’ve contributed to in broadening winery-to-consumer direct shipping access.
Want to see where your state stands? Use our Find Your State tool, and if your legislators need to hear from you, it takes about two minutes.
