Comments on Pre-Proposal 09-09: Internet Sales and Home Delivery

The following comments were submitted to the Liquor Control Board in response to their request for input regarding proposed rulemaking on issues surrounding direct shipment to consumers. Note the word "proposed". As noted in the text, we believe that some of the proposed areas for consideration are alarming, do not represent present concerns, and have not been specifically authorized by the Legislature. We will keep you posted as this rulemaking process procedes.

Family Wineries of Washington State is an organization presently representing over 85 small Washington Wineries. Many of our members are self distributed and virtually all rely on direct to consumer shipments for a significant part of their income, and consequently for their economic viability. We are therefore extremely concerned about the scope of this proposed rulemaking.

We are first concerned with one aspect of the background offered to justify the need for this proposal. It is suggested in the background section of the issue paper that the 2007 US Supreme Court decision “Rowe, Attorney General of Maine v. New Hampshire Motor Transport Association et al.” calls into question the State’s ability to regulate delivery of wine by common carriers. However, importation of alcohol into any State in violation of the laws thereof is prohibited by section 2 of the Twenty First Amendment to the United States Constitution. It is not reasonable to assume that the Rowe decision regarding the regulated substance tobacco supersedes the constitutional authority granted to states regarding the regulated substance alcohol. We are concerned that, to the extent this rulemaking is being predicated on such an assumption, it is unnecessary and may be somewhat alarmist.

Our second concern relates to the section of the issue paper regarding “other public safety measures to be explored” specifically:

• restricting when alcohol may be delivered to residential addresses;
• restricting the amount of alcohol that may be sold or delivered at any given time;
• requiring that a delivery person works directly for the licensee; and
• verifying and documenting the legal age of the person who purchases and/or accepts the delivery.

With regard to the first two points concerning timing and quantity of delivery, we would expect the Board to request evidence that these are presently issues raising problems in practice before proceeding to rulemaking. In the absence of such evidence, these two points would appear to invite regulations in search of actual problems to justify them.

The third point regarding requiring delivery by a winery employee is extremely disturbing. The elimination of a winery’s ability to ship to consumers via common carrier would be a devastating economic body blow to small wineries in already difficult economic times.

We do believe the final point regarding age verification to be an appropriate area of concern for rulemaking. We believe that both the statutory authority and the potential for adverse impacts are sufficiently existent for the Board to consider rulemaking on this point. We further believe that the information systems and technology are already in place to accommodate such regulations if they are drafted with reasonable care to work within the limits of such technologies.

Family Wineries of Washington State stands ready to offer input to the Board on sensible regulation of age and identity control for direct to consumer shipment of alcohol to consumers. Should the Board wish to expand the scope of the proposed rulemaking significantly beyond this issue, we feel it would be appropriate to seek direction to do so from the Legislature.

WSLCB References

Notice for Comment
Background Issue Paper