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Canadian Wineries Need a Resolution for Shipping Law Mess

Recent developments have made it clear that Canadian wineries, and Canadian wine consumers, need a resolution for the country\’s wine shipping law mess. Back in June 2012, there was great optimism in the wine industry because the federal government had amended the Importation of Intoxicating Liquors Act (using Bill C-311) to create a national personal use exemption for direct to consumer wine shipments between the provinces. These changes were passed unanimously (!) by both the House of Commons and Senate. At the time, it was hoped that the federal changes would herald the start of a new era under which all Canadian consumers would be able to direct order wine from other parts of their own country, just like they can in nearly all other places in the world. Unfortunately, the changes to the federal law allowed the provinces to impose their own restrictions on to the national exemption. Almost immediately after the federal change, both BC and Manitoba opened their borders to allow interprovincial shipments. Regrettably, each of the other provinces dragged their feet in various ways, most frequently by issuing \”policy statements\” that disavowed the permissibility of inter-provincial shipments.  

The situation has sadly gone from bad to worse recently. At the end of February of this year, the Alberta government quietly passed changes to its relevant regulations and issued another policy statement indicating that they would not allow direct to consumer shipments despite the fact that Alberta law clearly allowed such shipments previously (see: Alberta Attempts to Reverse Shipping Law Progress). These changes attracted little attention in Alberta but my guess is that they will prove to be very unpopular amongst Alberta consumers (and voters) who historically have embraced a \”hands-off\” approach to government regulation. More recently, in a somewhat astounding move, the Newfoundland government has charged FedEx with the offence of shipping \”contraband\” wine from BC into Newfoundland, presumably as part of a direct to consumer shipment: see FedEx Charged in Nfld for Shipping BC Wine. Both of these developments are unsettling because they show that provincial governments continue to exhibit both: 1) a Prohibition era mentality under which they treat wine as an illicit product from which local citizens need protection, and 2) a protectionist approach to free trade within Canada by treating wine from another province as if it is a \”foreign product\”. On a global scale, these problems are embarrassing. Can you imagine telling a winemaker in Bordeaux that he cannot ship wine to Paris? Or telling a Tuscan vintner that she cannot ship wine to Milan? Canada has now signed free trade agreements with the U.S. and the EU … but provinces like Alberta and Newfoundland continue to prevent free trade within the country! Under Alberta law, it is now easier to have wine direct shipped from the U.S. than it is from B.C.: unbelievable!

Canada badly needs to dismantle these short-sighted and parochial attitudes by forcing the provinces to enter the modern era. In the United States, the individual states were forced to do just that by a Supreme Court decision (Granholm v. Heald) which declared inter-state barriers to direct shipments as unconstitutional. In my view, it is likely that a similar result would be reached in Canada should the constitutional issue ever go to court. Perhaps FedEx will fight the Newfoundland government and get that victory? Or perhaps a group of wineries will bring such a legal challenge? In the absence of a court case, the federal government could also act. The simple solution would be for the feds to exercise their exclusive power over inter-provincial trade and to further amend the Importation of Intoxicating Liquors Act. Instead of allowing the provinces to circumvent the spirit of the changes, a fixed national personal exemption should be created at the federal level such that all Canadians would be free to order reasonable amounts of wine for personal consumption from other provinces without provincial interference. The sky would not fall (as it has not in nearly all other countries in the world which allow this). Indeed, both BC and Manitoba have now had open borders for almost 2 years. Neither of those provinces has experienced an apocalypse nor, for that matter, any decrease in provincial liquor revenues.

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