New Sixth Circuit Opinion: The Three-Tier System is Constitutional—Feigning Public Health Concerns to Discriminate is Not.

In a groundbreaking decision and major blow to interstate discrimination under the three-tier system, the Sixth Circuit Court of Appeals in Cincinnati held that Ohio’s discriminatory law prohibiting wine from being shipped to Ohio consumers from outside the state was unconstitutional. (Read Block v. Canepa here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0132p-06.pdf).

Discrimination alone isn’t enough, because under the test established by the Supreme Court in Tennessee Wine & Spirits Retailers Assoc. v. Thomas, a discriminatory law can still be constitutional if “(1) it ‘can be justified as a public health or safety measure or on some other legitimate nonprotectionist ground,’ and if (2) its ‘predominant effect’ is ‘the protection of public health or safety,’ rather than ‘protectionism.’”

Since there was no legitimate public health or safety basis for the law, the Court stated, “It is thus clear that the predominant effect of this law is not to ensure the public health and safety, but rather to ‘deprive citizens of their right to have access to the markets of other States on equal terms,’ and instead direct them to purchase wine from Ohio retailers.”

Ohio has already filed a motion to suspend the effectiveness of this ruling to provide an opportunity for it to appeal to the Supreme Court of the United States, which it must do by August 4, 2026. The Sixth Circuit is now considering this request, with Ohio arguing that the Court’s ruling is contrary to other federal appellate court decisions.

Seven other circuits have allowed states to enforce similar physical-presence requirements, and some of those courts even ruled that similar restrictions were based on valid public-health considerations. Ohio argued that this suggests that a majority of the Supreme Court would reverse the Sixth Circuit. The circuit split increases the likelihood that the ruling will be temporarily suspended and could lead to an acceptance of the case by the Supreme Court, which would give the Supreme Court the chance to emphasize that just because the three-tier system as a whole is constitutional, it does not give states free reign to discriminate.

The Sixth Circuit hears appeals from Ohio, Michigan, Kentucky, and Tennessee, so if the ruling stands, shipping in those states could finally open up.