It’s been a long time since e-commerce made anyone’s list of emerging technologies. But for smaller wineries around the country, the routine process of conducting business over the Internet has been burdened by a thorny set of state laws that bars wineries in many states from shipping to customers in others.
Now the U.S. Supreme Court is weighing in on the dilemma, and the result for consumers could be the opportunity to buy wine from any vineyard they choose. The high court is mulling how the right of states to regulate interstate alcohol sales stacks up against the Constitution’s provisions for free trade. A decision in favor of the wineries will permit them to ship freely throughout the country.
The backstory in this widely followed court case, however, is how the Internet’s reshaping of commerce is propelling change in the wine industry and on the laws that govern it.
To New York School of Law professor David Johnson, challenges to the status quo by small and medium-sized wineries and their consumers resembles the challenges to opinion content that launched the blogging phenomenom.
“A small winery and a blog share the same inspiration: that everyone is a producer,” says Johnson.
The wine industry has famously met the Internet before. Virtual Vineyard was an e-commerce star that pioneered the online spirits industry. It was a darling of venture capitalists until its business model of brokering sales directly from wineries ran afoul of the very law the Supreme Court may overturn. Virtual Vineyard morphed into Wine.com, which now sells through a network of wholesale distributors with physical locations throughout the country.
It’s that distributor network that is now under scrutiny. Wholesalers’ built the system as a way to manage the knot of Prohibition-era state laws that ban the shipment of alcohol directly from manufacturers to consumers.
But small vineyards can have a hard time getting into the distribution system. The $21-billion retail wine business is lopsided, with just 2.4 percent of wineries producing 87 percent of the wine sold in 2002, according to Wine America, a leading trade group that’s actively involved in pushing for change. At a disadvantage is the thriving cottage industry of 1,659 wineries that produce less than 25,000 cases annually but comprise a whopping 81 percent of the total number of wineries.
Consolidation among wholesalers is increasing the squeeze on modest-sized players.
“Wholesalers are purchasing each other, and their portfolios get larger and larger, and the smaller wineries find it hard to be carried,” says Paul Tincknell, a Healdsburg, Calif., winery consultant.
As the Federal Trade Commission put it in a statement last year regarding anticompetitive barriers to e-commerce, while many of the alcohol industry’s direct-shipping regulations “may have legitimate consumer protection rationales, many of them also have the effect of insulating local businesses from out-of-state competitors.”
Online commerce has emboldened consumers to expect more, and business proprietors to deliver more. The combination of the two forces compelled the small wineries and consumers to bring the current lawsuits.
“This is another instance in which the Net, which first allowed communications to cross borders more readily, is now increasing the ability of [physical goods] to cross borders,” says Johnson. “It’s always been possible to take a long trip and buy a case of wine in some remote location. But being able to decide who you want to deal with outside of a large distribution chain or advertising campaign is empowering for consumers.”
It’s especially empowering for contemporary wine drinkers, who, in wanting to purchase goods directly from retailers, found themselves stymied by the dust-bowl era restrictions of the 21st Amendment, which repealed Prohibition in 1933 and granted state rights over the distribution of alcohol.
Michael Froomkin, a law professor at University of Miami in Coral Gables, Florida, likens the roiling in the wine industry to the disruption over copyright that caused friction in publishing and music with the notable difference that the wine industry must deal with a Constitutional amendment regulating its trade.
If the Supreme Court sides with free interstate trade when it issues its decision next spring, wine lovers will have the same benefits of decentralization that the Internet has brought consumers in other industries.
Indeed, wine lovers want details on quality and bottling, and instant pricing information – information that’s far beyond what liquor stores can provide, says Alan Wiseman, an assistant professor of political science at Ohio State University who co-authored a study this year on market barriers in the wine industry.
Using a sample of wines identified by Wine & Spirits magazines annual restaurant poll, the report found that 15 percent were unavailable from retail wine stores within 10 miles of McLean, Virginia. Wiseman’s report concluded that Virginias direct shipment ban, which has since been overturned by the state legislature, prevented consumers from purchasing some premium wines.
A recent poll by Motto Kryla Fisher, winery business advisors in St. Helena, Calif., found that less than one percent of wineries were selling using the Internet. Most relied on their websites as a means for communication while ringing up most of their sales from tasting rooms. Tincknell says his clients’ e-commerce frequently consists of an online form that visitors fill in to request a phone call so they can place an order.
But Tincknell suspects there’s a big party waiting to happen.
“If the Supreme Court rules in favor of wineries shipping to other states, a lot of small wineries will see an investment that pays off,” says Tincknell.
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