Michigan: Canary in the DtC Coal Mine?

A note from John Hinman: The following is a guest blog post by Jeff Carroll. Formerly VP of Compliance at ShipCompliant and a wine industry veteran, Jeff is an astute observer of wine industry trends and continues to stay on top of industry developments while blogging at Obsequium. On breaks from chasing two young kids around, you can find him on the slopes of Colorado or on the tennis court.

The Michigan Timeline: a great case study of how DtC marketing and sales are evolving in a key state:

  • 2005: Wineries prevail at the Supreme Court in Granholm v Heald in their case against the states of Michigan and New York, which had prohibited direct shipping.
  • 2005: HB 4959 is signed into law, allowing out-of-state wineries to ship to consumers.
  • 2008: Retailers successfully sue Michigan in Siesta Village Market LLC v Granholm, forcing Michigan to allow out-of-state sales by retailers.
  • 2008: Michigan immediately passes SB 6644, leveling down on DtC shipping by retailers, but with an exception for delivery with a retailer’s own trucks.
  • 2014:MB&WWA issues an RFP for a private investigator to conduct investigation in collaboration with law enforcement
  • 2015: The Wine & Spirits Wholesalers of America (WSWA) invests in Drizly.
  • 2015: MLCC begins sending out warnings and fines for DtC shipping violations.
  • 2015: MB&WWA issues Michigan “Wine Direct Shipping research and Analysis" report
  • 2017: SB 1088 is signed into law permitting local delivery but prohibiting out of state retailer shipping into Michigan.
  • 2017: Retailers sue Michigan on Commerce Clause grounds.

Over the last several years, direct-to-consumer (DtC) wine shipping grew at a blistering pace. According to the recent report issued by ShipCompliant and Wines & Vines, the value of wine shipped by US wineries reached $2.33 billion, representing 75% growth since 2011. No longer a niche channel for high-end wineries, DtC shipping is moving towards maturity.

So, now that 93% of the US population has legal access to direct shipments by wineries, what should we expect in the next phase for the DtC channel?

The Michigan experience is a roadmap. The recent flurry of legislative activity that has resulted in a third important lawsuit against the State of Michigan related to DtC shipping legislation provides both clarity and a better understanding of the motivations of each of the tiers of the wine industry in every state.

Wineries are mostly in clean-up mode

With the passing of DtC legislation in Massachusetts and Pennsylvania over the last few years, wineries can now legally ship wines ordered off-site to 43 states (plus Washington D.C.) representing 93% of the US population. Only Alabama, Delaware, Kentucky, Mississippi, Oklahoma, Rhode Island, and Utah prohibit off-site shipments. Although these states will eventually pass DtC laws (the pressure is on from the winery associations, as well as from consumers), it may take another five or ten years to fully play out in the more conservative legislatures.

Meanwhile, winery advocates are working to tweak some of the more problematic provisions in the states that allow DtC shipments. Michigan’s new legislation (SB 1088) is one such example of a "clean-up" initiative. Going back to the 2005 DtC legislation, the original Michigan statute required wineries to print their direct shipping license number as well as the order number on the shipping label. The MLCC also required the product registration number to appear on invoices. SB 1088 removes the unique requirements for the outside of the box, and also clarifies that registration numbers are required but need not appear on the label or on invoices. Both will greatly simplify compliance for licensees. Cleaning up mostly useless requirements is a positive.

Retailers need a Granholm moment

While wineries have seen tremendous success with DtC legislation since the watershed Granholm ruling, wine retailers have actually moved backwards and today can legally ship to only 14 states, representing only 24% of the US population. This lack of traction and ineffectiveness can be attributed to tremendous pushback and legislative clout from both wine wholesaler and local package store associations.  The issue for both is competition.

In Michigan, for example, while the Michigan Beer & Wine Wholesalers Association (MB&WWA) maintains neutrality when it comes to DtC shipping by wineries, the group opposes DtC shipping by out-of-state retailers. This is reflected in SB 1088, which also creates a new license to allow in-state retailers to ship to consumers but prohibits out-of-state retailers from doing the same. According to Spencer Nevins, President of MB&WWA, there are “only a limited number of wineries in the United States. In contrast, there are hundreds of thousands of wine retailers in the United States."

The prohibition against out-of-state retailers creates at least three challenges for Michigan consumers. First, foreign wines can only be purchased through the inventory available at Michigan retailers. National wine clubs and alternative distribution models like Wine.com will also have a hard time reaching Michigan consumers now without owning a bricks and mortar retailer in Michigan. Finally, out-of-state shipments will be limited to wines from a single winery at a time (no mixed shipments).

Retailers jumped on the discriminatory nature of SB 1088 and filed suit against the Governor, Attorney General, and Chairman of the MLCC in US District Court. Similar to lawsuits filed in Illinois and Missouri, an out-of-state retailer plaintiff seeks a judgement on Commerce Clause and Granholm grounds. Lebamoff Enterprises Inc. v Snyder is the third major court case brought against Michigan regarding the direct shipment of wine following Granholm and Siesta Village Market.

The National Association of Wine Retailers (NAWR) would like nothing more than to replicate the momentum and success that wineries had following the Granholm ruling of 2005 and are hopeful that the three current suits in Michigan, Illinois and Missouri will move them closer to the Supreme Court and a possible landmark ruling to clarify the scope of Granholm. “The Lebamoff case is identical to the Siesta Village Market case Michigan lost in 2008. Once again, wine wholesalers have put their own interests ahead of those of Michigan consumers with this facially discriminatory bill,” said Tom Wark, Executive Director of NAWR.

Wholesalers want more enforcement (plus a piece of the pie)

Prior to 2015, wholesaler groups primarily opposed DtC shipping in general without offering much in terms of alternatives. Now, as evidenced by Michigan, they are mostly conceding the battle to wineries but remain adamantly opposed to out-of-state retailer shipping.

But does the 2015 investment in Drizly by the Wine & Spirits Wholesalers of America (WSWA) signal a shift in philosophy?

Allowing (and encouraging) in-state retailers to ship to consumers appears to be part of a new wholesaler strategy to participate in the growing and important DtC channel. Spencer Nevins expanded on the motivation behind the SB 1088 legislation when he cited a "desire to expand access to wines for Michigan consumers in a manner that can be realistically and effectively regulated by the MLCC and by a desire to embrace the recent development of third-party facilitators such as Liquor Limo and Drizly.” SB 1088 also creates a “Third Party Facilitator” license to enable services that create third party apps and websites to advertise wines available, but only through in-state retailers.

At the same time, wholesalers are working with state liquor control agencies in multiple states, including Michigan and Illinois, to seek better enforcement of DtC laws and regulations. In Michigan, the MB&WWA issued an Request for Proposal (RFP) for a private investigator to “research the scope of direct shipping of alcoholic beverages in Michigan” through controlled buys with law enforcement. The RFP identified several companies to target specifically, including the Wall St. Journal Wine Club and Amazon Wine. The resulting report, prepared by The Hill Group, found very low compliance rates, although the selection methodology for the 18 vendors used for controlled buys in the report is fuzzy.

A central component of this effort to crack down on illegal shipments is to adopt new bills like SB 1088 in Michigan and HF 791 in Minnesota that create licenses for common carriers (FedEx and UPS) and requires the carriers to submit detailed periodic reports of all shipments (what, from who, to who, etc.) containing alcohol coming into the state. While this allows liquor control agencies to better monitor, quantify, and enforce tax payments for DtC shipments, it also creates a means to identify shipments from industry members that are legally barred from obtaining permits and paying state taxes.

New battle lines are drawn

We are in a new era of direct wine shipping where laws allow consumers in most states to purchase wines from domestic wineries but not from importers or out-of-state retailers. At the same time, agencies, who now have the tools to do more active monitoring, continue to step up enforcement. With the addition of laws such as SB 2989 in Illinois, the penalties for failure to comply with the requirements include a felony and potential jail time; high stakes indeed. Additionally, the new carrier reporting laws will force FedEx and UPS to create much stricter controls for wine shipments. In turn, wine businesses operating in the “gray” areas of the law will be exposed while wineries and in-state retailers that are legally able to operate compliantly will benefit.

Retailers are gearing for a fight while wholesalers dig in and begin to embrace the DtC trend. The three retailer shipping cases will either provide a boost for retailers or will affirm the status quo. In order for significant change to come about, consumers and rare wine collectors will have to become a significant part of the conversation. Retailers are hopeful they'll demand a broader selection of imported wines, mixed shipments, and innovative business models.

We’ll be watching these trends closely over the next few years, and as the industry turns this interesting corner we see in Michigan the proverbial canary in the coal mine.