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GUEST EDITORIAL Viewpoint We welcome commentaries from readers on issues of current interest in the wine industry. Send your topic idea to edit@winesandvines.com, and we'll contact you. Massachusetts Laws Not Improving With Age By Jeremy Benson T oday, 39 states representing 89.5% of the wine market allow for legal, regulated direct shipping of wine from wineries to consumers—but not Massachusetts. In fact, the Bay State holds a special place in our rankings of states on this issue. By the numbers, Massachusetts is the seventh largest state for wine consumption and the largest without provisions allowing winery shipment. From a legal perspective, consumers hoping for changes have endured three years of legislative inaction following an appellate court ruling directing the legislature to correct its unconstitutional ban. Even the most cynical consumer probably would not have predicted that the ruling would produce no legislative solution within three years. Yes, House Bill 1029 was introduced in 2011, but it languished in committee. And from a winery perspective, how many orders do you turn down in a month? Five, 10, 25? So how did Massachusetts, a state that prides itself on liberty, allow an unconstitutional ban on consumer rights to remain uncorrected? And what is the remedy? First, some background on the issue: In 2005, Massachusetts House Bill 4498 passed both the state House and Senate. HB 4498 would allow Massachusetts wineries to sell directly to state consumers as well as through state wholesalers, while out-of-state wineries producing more than the 30,000-gallon cap would not have this option. (No in-state wineries produced more than 30,000 gallons.) The bill was condemned for seeking to place conditions on out-of-state wineries that did not exist 82 W in es & V i ne s F E B R UARY 20 13 for Massachusetts' wineries. Then-Gov. Mitt Romney vetoed the bill, commenting on its "anti-consumer effect as well as its dubious constitutionality," but the veto was overridden. In January 2006, Gov. Romney introduced (but failed to pass) a separate bill similar to legislation working in many other states, saying, "It's time we end the monopoly that wholesalers have over wine sales." Massachusetts is the largest state without provisions allowing winery shipment. Instead of passing the governor's new bill, HB 4498 became law in 2006. In September 2006, Family Winemakers of California v. Jenkins was filed. Funded by Family Winemakers of California and Coalition for Free Trade, the filing stated that current Massachusetts law violated the nondiscrimination principle of the Commerce Clause, which prohibits "laws that burden out-of-state producers or shippers simply to give a competitive advantage to in-state businesses." Then in January 2010, Judge Rya Zobel of the federal district court ruled the statute unconstitutional. The legislature was expected to conform to the ruling by passing a model bill similar to those working successfully in the majority of U.S. states. Introduced in 2011, House Bill 1029 would have conformed to Judge Zobel's ruling, but it languished in committee throughout 2012. By continuing to allow the unconstitutional law to remain in effect, Massachusetts lawmakers are missing out on the benefits of legal, regulated direct shipping. Last month's report by the comptroller of Maryland (comparing annual figures before and after its direct shipment program began July 1, 2011) articulated those benefits. To paraphrase: • he new law did not hurt sales from T wholesalers to wine retailers; wholesaler sales rose by 3.6%. • he new law raised approximately $7 in T tax revenue for every $1 the state incurred in both recurring and one-time, nonrecurring implementation costs. • Consumer choice expanded. A new bill is expected to be introduced soon. Here is how wineries can help: • E-newsletters: Include a call to action asking Bay State consumers to visit freethegrapes.com and personalize a message that will be sent automatically from our website to their state representatives; • Flyers in tasting room: Order flyers from us that can be included in your club shipments (everyone has friends in Massachusetts) and handed out in tasting rooms; • Link to our website; • Fan us on Facebook/FreetheGrapes; • ttend the annual summit about direct A marketing and sales, the Direct to Consumer Wine Symposium, to stay informed and support the cause. Sample text, order forms and more helpful information are always available at freethegrapes.org. The new year provides new opportunities. Join us as we work with committed wineries, associations, and industry representatives to effect positive change. Massachusetts, it's time to Free the Grapes! Jeremy Benson is executive director of Free the Grapes!, a national movement of consumers, wineries and retailers supporting legal, regulated direct shipping of wine. Benson is also president of Benson Marketing Group.