The High Costs of State Alcohol Franchise Laws

The power to take your business elsewhere is fundamental to capitalism. This power of choice keeps prices reasonable, incentivizes efficiency and customer service, and keeps the business environment healthy by forcing companies to innovate and winnowing out those that don't keep up. Remove the ability to choose another partner and commerce becomes far less efficient.

But in the world of wine, there are large swaths of the country where such an open market is only a dream. And I'm not talking about the ability for customers to purchase wine freely from wineries and have it delivered to their door (that's a whole different issue).  I'm talking about alcohol franchise laws, which govern the relationship between a winery and the state-licensed distributor that can sell that wine to that state's restaurant and retail customers.  Franchise laws distort the supplier-distributor relationship by granting the distributor indefinite and typically exclusive rights to sell a supplier's product, no matter how good or bad a job they do, no matter whether their key employees stay or leave, and even no matter if the company is sold.

There are currently some twenty states with a version of this alcohol franchise law, in regions as diverse as the northeast (CT, DE, MA, ME, NJ, VT), southeast (GA, NC, TN, VA), upper mid-west (MI, OH, WI), great plains (AR, KS, MO) and mountain west (ID, MT, NM, NV).  There are variations in the extent to which they give recourse for the suppliers.  Some have production limits, so suppliers smaller than an arbitrary size can get out of their franchise ties.  Some require that suppliers keep existing relationships but allow a supplier to add a second distributor.  Some allow you to take your case to a hearings board and leave your distributor if you have cause.  But in all cases it tilts the balance of power in a supplier/distributor relationship even further in the direction of the distributor.

It's not as if distributors need the help.  Most distributors are much larger than most of the wineries they represent.  As a small-to-medium sized winery, I'm sure there isn't a single distributor of the 50+ we use around the country to whom we represent even 1% of their business.  In most cases, we represent a tiny fraction of a percent of their business, and the franchise law's justification -- that small, local distributors need protection from capricious removal of custom from out-of-state liquor goliaths -- is a relic from pre-Prohibition fears of "big liquor" and simply doesn't apply to fine wine.

The costs of franchise laws are significant.  It should be obvious that removing a supplier's ability to choose to move its business elsewhere reduces the incentives to serve the interests of that supplier.  But there are costs to consumers as well, as distributors in states with franchise laws typically work at higher margins than in states without them.  If no other distributor can attract away your high-profile brands with the promise of selling more wine on a thinner margin, distributors are only behaving rationally to make a little more money on what they sell.  Franchise laws also discourage innovation and investment as a distributor can't attract new suppliers by doing a better job and convincing other distributors' suppliers to move. The only way for a distributor to get new business is to buy other distributors, or, in a process that resembles major league baseball's pre-free agency days, arrange for a trade with another distributor.

Distributor consolidation -- in which the number of wine distributors has shrunk by two-thirds over the same two decades where the number of wines for sale in the United States has doubled -- is an issue even in non-franchise states, but it's balanced there by the ability of new distributors to enter the market and attract suppliers dissatisfied by the ever-larger distributors.  It is much less attractive for a new distributor to open in a franchise state, where they can only attract wineries new to the market, and the larger average size of distributors in franchise states reduces the choices that suppliers (and restaurant and retail customers) have and constricts the supply chain.

As in non-franchise states, franchise state wholesalers run the gamut from excellent to indifferent, and we have the pleasure of working with some sterling franchise state distributors. These distributors are among those most hurt by franchise laws because they can't parlay their hard work into more business. Ultimately, franchise laws cause a gradual calcification of the wine market in the states they affect, reducing that market's growth. Many small suppliers I speak to won't sign with a distributor in a franchise state and instead choose to focus their efforts elsewhere, worried that should their needs change they will be locked in and unable to move.

I have yet to read a convincing explanation of why franchise laws are constitutional.  In fact, it seems to me that they violate antitrust laws as well as the Commerce Clause of the US Constitution, which prohibits states from interfering in the free exchange of goods across state lines.  If any readers out there are versed in alcohol franchise law, please jump in in the comments section to explain, if you can.

Despite the potential coalition of suppliers large and small, restaurants, retailers, consumers and innovative distributors, it's rare to hear about the issue of franchise laws.  A potential solution might be found in the model developed for the ongoing and increasingly successful fight for direct shipping, which combines a consumer-focused mouthpiece in Free the Grapes and a few well-funded nonprofits behind it to wage legislative and legal challenges.  If and when this model emerges, you, as a wine lover, will know which side you should support.