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Six years after the 6th Circuit Ct of Appeals upheld Michigan's ban on shipments from out-of-state retailers to in-state consumers, the ct struck down a similar law in Ohio this wk. Reviewing the case for a 2nd time, a 3-judge appellate panel once again found that the lower ct improperly reviewed the "concrete evidence" put before it to show the law's primary purpose is protecting "public health and safety." Drawing distinctions between MI's and OH's laws, "the connection" between OH's ban and those goals "is tenuous and unsubstantiated," the judges determined. But that ain't all. The District Ct agreed with Ohio that its prohibition on direct shipments from out-of-state retailers is among the "trusses supporting a larger structure" and is "essential" to the 3-tier system. Not so, the 6th Circuit fired back this wk. "Because Ohio does not actually have a three-tier system with respect to wine."Thru "extensive wine-specific exceptions" to strict 3-tier separations, OH offers "numerous pathways" for wine to come in from out-of-state wineries, fulfillment houses and some "grandfathered" retailers, the ct reviewed. And those exceptions are enough to collapse the system, at least as it pertains to wine, at least in the view of these judges.The state, again joined in defending the law by the state beer & wine distrib assn (WBWAO), argued that the ban is supported by the need to inspect wine for consumer safety reasons, to control prices and to prevent underage drinking. But the 6th Circuit shot down all 3 arguments. In the first case, the state and the assn only offered a single "isolated example" of state agents blocking unsafe wine, which came from an in-state "amateur vintner," not an out-of-state source. "All of their other examples relate to alcohol in general," not wine, and the ct already decided that OH's treatment of wine is different, so it tossed all other evidence aside.Assertions about the ban's impact on price controls and taxation were merely "speculative and unsupported." And the claims about blocking underage drinking are "the least convincing," again since wine can be shipped directly to homes from other sources. These judges found support for the state's 6-bottle limit on the amount of wine residents can carry into the state on their own to be "extremely tenuous" and even more suspect, striking down that law as unconstitutional as well.Next Steps: Level Up or Down? En Banc Request? Sup Ct? The 6th Circuit panel sent the case back to the district ct to decide on the best "remedy." It urged that ct to merely strike the 6-bottle limit on personal importation, but agreed that crafting a constitutional remedy to the retailer shipping ban "is more complicated." Indeed, throughout the ruling, the judges hinted at the useful possibility of "leveling down" the law, that is, barring in-state retailers from direct shipping to OH consumers as well, rather than expanding that privilege to out-of-state retailers.But the state could ask for an "en banc" review first, NBWA's Paul Pisano wrote for his Alcohol Law Review blog, in which all judges on the 6th Circuit would take a look at the case. The decision also comes on the eve of the Supreme Ct reviewing two separate cases on the same subject, coming from the 9th Circuit and the 7th Circuit, both of which upheld similar shipping restrictions in Arizona and Indiana, respectively. The justices are set to review briefing on those appeals next wk, Paul pointed out.

The 6th Circuit Giveth, the 6th Circuit Taketh Away: Appeals Ct Strikes Down OH Retail Shipping Ban

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