Washington Breweries Sue Oregon For Access

Before he go-founded Dwinell Country Ales in Goldendale, WA, Justin Leigh was a lawyer. When I first visited the brewery years ago, the idea of a professional, urban Chicago couple moving to remote Goldendale to start making wild ales, the whole thing seemed incongruous. I doubt Justin has had much use for his insight into tort law (or whatever his specialty might have been) in the brewhouse, but it did cause him to take note of a couple Oregon laws that seemed unjust.

If you own a Portland brewery and self-distribute your beer, Washington State welcomes you to drive across the river and deliver to a Vancouver pub. Oregon laws, however, forbid the reverse. As Jubel Early mused on Firefly, “Does that seem right to you?” It didn’t seem right to Justin, who researched the law and found good evidence that it is in fact illegal.

Yesterday three Washington breweries, Seattle’s Mirage, Vancouver’s Fortside, and Burlington’s Garden Path, filed suit to open up the Oregon market.

I am not a lawyer, so I’m going to turn to Justin’s press release to get the language right. Although Justin got the ball rolling on the lawsuit and found legal counsel to take the case, Dwinell isn’t a party to the suit—though Justin helped draft the lawsuit and is acting as an expert witness.

The key issue involves the so-called Commerce Clause, which regulates interstate commerce. I actually visited Dwinell a few weeks back to hear about this, but I think this language is clearer than my notes:

Currently, Oregon statutes permit in-state breweries to self-distribute to licensed retail businesses, while prohibiting out-of-state breweries from enjoying the same right. Additionally, Oregon law allows in-state breweries to ship their beer directly to Oregon consumers, but expressly prohibits Washington breweries from the same privilege. The Plaintiffs allege that these two laws unlawfully discriminate against out-of-state breweries, including Washington breweries specifically, in a manner that violates the Commerce Clause.

The case law here seems pretty strong to me as a layman. The US Supreme Court actually decided a case very similar to this in Granholm v. Heald back in 2005. Wine was at the center of that case, but it was nearly identical. The Court ruled “that laws in New York and Michigan that permitted in-state wineries to ship wine directly to consumers but prohibited out-of-state wineries from doing the same were unconstitutional.”

If you want to get into the constitutional deep brush, have a look at the Wikipedia article on the Granholm case. The argument hinges on an interpretation of Article 1 of the Constitution, which gives Congress the authority to regulate commerce between the states and the 21st Amendment, which repealed prohibition. Although the language is pretty garbled in the way of much of the Constitution, the 21st Amendment seems pretty clear about this point. Or clear enough to get five Justices to rule that protectionist laws are unconstitutional. (The Court is going to be dealing with some serious state-vs-state jurisprudence in the near future, as states try to extend their own abortion and gun laws to neighboring states.)

All of which is a pretty big deal, precedent-wise. And if the Granholm precedent wasn’t enough, the plaintiffs have secured the same legal counsel who won the Supreme Court case. Justin cautioned that proceedings of this type are not quick, and he wouldn’t be surprised if it took five or more years to wend its way along—nor would he be surprised if it never went to trial. So put it in the back of your mind as yet one more way in which the US’s antiquated liquor laws are being tested (and, I hope, reformed).