UPDATE…….. ARIZONA WINS
The 9th Circuit has issued a ruling. The state of Arizona wins, volume caps and face to face purchase requirements are permissible. Read the ruling here.
On September 15th, the 9th Circuit heard oral arguments of a wineries appeal of an Arizona district court’s decision upholding the state’s winery laws. Click here if you would like to hear the oral argument while you eat lunch at your desk. It appears one of the judges is not all with the state, one is silent and one is mixed. Should be interesting.
As you may recall the district court ruled on this matter in February 2008. The decision in Black Star Farms v. Oliver was a favorable ruling for the states. It had good Granholm flag waiving and more importantly, placed the burden properly on the plaintiffs, not the defendants. Also, it does not take the plaintiff’s bait of alleging hometown favoritism just because there are more wineries out of state: “The mere fact that more out-of-state wineries than in-state wineries are required to adhere to Arizona’s three-tiered distribution system is not by itself sufficient to establish that Arizona’s statutory scheme is patently discriminatory in effect against interstate commerce.”
Professor Tanford has filed an appeal to the 9th Circuit from his loss in the Arizona winery case, Black Star Farms, L.L.C. v. Oliver, 544 F.Supp.2d 913 (D. Ariz. 2008). The opinion of the district court (PDF) noted that the challenge by Professor Tanford was trying to extract an unattainable perfection out of a regulatory system that is going to vary state by state; “Nothing in Granholm suggests that the Supreme Court was concerned about equalizing the inherent marketing advantage that accrues to in-state wineries because of their close proximity to a state’s consumers.”