Garbage In, Garbage Out. How Can the Supreme Court Dissect the Truth?
Ohio's public health argument has one problem: the evidence doesn't exist.
I read with interest the recent blog post by Tom Wark on what is going on in Ohio and the Supreme Court.
For anyone not following the case closely, here is the situation in brief. Ohio bans out-of-state retailers from shipping wine directly to Ohio consumers. In May 2026, the Sixth Circuit Court of Appeals struck that ban down, ruling it violated the Commerce Clause by treating in-state businesses more favorably than out-of-state ones. Ohio has now asked the U.S. Supreme Court to take the case, Block v. Canepa, and reinstate the ban. To make that case, Ohio argues that its three-tier system protects public health and that without the ban, the state will be flooded with cheap, unregulated alcohol.
I have another view on the strategy and statements being made that I feel aligns with and is complementary to Tom’s post, specifically the financial side of things that tends to get glossed over.
What caught me the most were these two statements from the State of Ohio.
“Wine sold in Ohio must, generally, pass through all three tiers. Doing so reduces alcohol consumption and serves the State’s health and safety goals by facilitating inspection of in-state retail premises and products meant for consumption in Ohio as well as ensuring adherence to other Ohio liquor laws.”
“This Court should grant review and restore Ohio’s sovereign power to regulate alcohol importation into its borders. If not, Ohio alone among its sister states will suffer an influx of cheap, unregulated alcohol, which will undermine the three-tier system it erected to protect its citizens.”
Let’s take these apart, because neither one holds up to scrutiny.
Statement One: Distributors Reduce Consumption and Ensure Product Safety
The claim that passing wine through a distributor reduces consumption is stated without a single piece of supporting evidence, because none exists. The Sixth Circuit Court of Appeals said as much in its May 2026 Block v. Canepa ruling, finding that Ohio’s health, safety, and temperance justifications for its shipping restrictions were “speculative or undermined by evidence that Ohio allows similar activities by other out-of-state entities.” Courts are now saying out loud what the industry has known for years: these arguments are not grounded in fact.
These are the same distributors who have argued in court filings that they must be involved in alcohol sales because the products are “inherently dangerous.” So the mandated intermediary is simultaneously telling consumers these products are dangerous while restricting what consumers can actually access. That is not a public health function. That is rent extraction dressed up in regulatory language.
As for “inspection of in-state retail premises and products meant for consumption”, I would love to hear Ohio explain in open court exactly what they are inspecting, where they are inspecting it, and what the results of those inspections show. Because the entity actually responsible for alcohol product safety is the federal Alcohol and Tobacco Tax and Trade Bureau (TTB). The TTB’s laboratories conduct chemical testing to ensure product integrity is not compromised and that contaminants, adulterants, and prohibited ingredients are not present in marketed alcohol products. TTB investigators run a market surveillance sampling program, purchase products in the open market, and take enforcement action when what is being sold is not what it claims to be. State distributors play no documented role in any of this. The product safety claim in Ohio’s brief is not a health argument, it is a placeholder that has never been tested against any actual evidence.
Statement Two: “Cheap, Unregulated Alcohol” Will Flood Ohio
Ohio’s second statement contains what I consider the most telling phrase in the entire filing: “Ohio alone among its sister states will suffer an influx of cheap, unregulated alcohol.”
Let’s start with the word “unregulated.” Ohio itself has already established, through its own legislative choices, a clear system that allows in-state retailers to sell and ship direct to Ohio consumers. More importantly, Ohio has had winery direct-to-consumer shipping licenses in place since 2007, nearly nineteen years, during which wineries from anywhere in the country have been able to obtain a permit and ship directly to Ohio consumers, bypassing the wholesale tier entirely. The Sixth Circuit made note of this exact contradiction, concluding that “Ohio does not actually maintain a three-tier system through which ‘all [wine] passes before reaching consumers.’” So the product shipped directly from wineries is somehow regulated enough to have been legal for nineteen years without incident, but the same bottle shipped from a licensed out-of-state retailer would create an unregulated catastrophe? Where is the evidence?
Then there is the word “cheap.” This is where Ohio’s argument doesn’t just lack evidence — it actively contradicts itself in a way that should not go unnoticed.
Ohio is one of the very few states in the country that mandates minimum price markups at every tier of the distribution chain. Under Ohio Administrative Code, distributors are required to mark up the wholesale invoice cost by a minimum of 33.3% before selling to retailers. Retailers must then mark up that already-inflated price by a minimum of 50% before selling to consumers. The compounding effect of these two mandatory markups means that a bottle of wine effectively doubles in price between the producer and the consumer’s hand — a 100% markup over the producer’s base cost, mandated by law. Wine Spectator has reported this as the highest mandatory retail wine markup in the nation, with Ohio consumers paying 25–50% more per bottle than consumers in comparable open-market states.
So when Ohio warns about “cheap alcohol,” what they are actually defending is a system that has artificially inflated alcohol prices for Ohio residents since Prohibition. The “cheap alcohol” they fear is simply wine priced at what a competitive market would naturally produce. The three-tier system’s mandatory margins are not protecting citizens — they are protecting the distributors’ legislatively guaranteed income stream.
Follow the money, and the argument clarifies itself quickly.
The Bigger Picture
I genuinely hope the courts — whether that is the Sixth Circuit sitting en banc or eventually the Supreme Court — ask the hard questions that these arguments have never had to face. What exactly are you inspecting? Show us the data that distributor involvement reduces consumption. Explain why winery DTC has operated safely in Ohio for nineteen years but retailer DTC is an existential threat. And explain how protecting a state-mandated 100% markup over producer cost serves the health and safety of Ohio citizens rather than the financial interests of the wholesale tier.
The Commerce Clause and the dormant commerce doctrine exist for precisely this reason: when a state erects barriers that interfere with interstate trade under the cover of regulation, without evidence that those barriers serve a genuine public interest, the courts are supposed to look past the stated justification to what is actually happening. The 21st Amendment gave states meaningful authority to regulate alcohol. It did not give them a blank check to protect incumbent middlemen with mandatory margins and evidentiary-free health claims.
As they say in the technology industry: garbage in, garbage out. The arguments Ohio is making to defend this system are not built on evidence. They are built on the assumption that courts will keep accepting the same assertions they always have, without demanding proof. That assumption deserves a direct challenge.