NY Suit Asks Court to End Ban on Direct Wine Sales

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U.S. District Court Judge Richard Berman will hear arguments April 17 to decide whether New York State's ban on interstate wine shipments to consumers is constitutional.

The hearing comes after victories in North Carolina April 5 and Virginia March 29 in which federal judges ruled that bans on interstate, direct-to-consumer wine shipments are unconstitutional.

The plaintiffs, which include small wineries from Virginia and California,as well as wine consumers from New York State, seek the repeal of New York's ban on the direct shipment of out-of-state wines to consumers. New York, like 26 other states, requires out-of-state wineries to ship through wholesalers to reach consumers within its borders while no such restriction applies to wineries within New York state. The plaintiffs also want the court to strike down related restrictions on online advertising of wine sales.

The plaintiffs are Juanita Swedenburg, Swedenburg Winery in Virginia, David Lucas, Lucas Winery in California, and three New York residents, Patrick Fitzgerald, Cortes DeRussy, and Robin Brooks. The plaintiffs' suit is being coordinated by the Coalition for Free Trade and attorney Clint Bolick of the Washington, DC-based Institute for Justice.

The hearing stems form the lawsuit Swedenburg v. Kelly, where the Institute for Justice argues that the direct shipping ban violates the Commerce Clause and the Privileges and Immunities Clause of the U.S. Constitution, which forbid protectionist trade barriers. The lawsuit further argues that a related ban on advertising of wine sales across state lines violates the First Amendment.

"New York's ban is naked economic protectionism; wholesalers are using government power to keep out competition," said Steve Simpson, an Institute for Justice attorney. "Wholesalers won't carry most small wineries so shipping directly to consumers is the only way for small wineries to do business with consumers who want their wine."

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