Several Washington breweries and beer distributors filed suit in federal court against the Oregon Liquor and Cannabis Commission, the State Attorney General, and the Governor. The out-of-state breweries are challenging Oregon laws that (1) allow resident breweries to sell, ship, and deliver beer directly to Oregon consumers with a direct shipper permit, but only allow nonresidents to obtain a permit if their home state offers the same privilege to Oregon permittees; and (2) allow resident breweries to self-distribute beer to resident retailers without selling through distributors. See Or. Rev. Stat. §§ 471.200, 471.221, 471.282. The Washington breweries and beer distributors allege that, because neither law provides a mechanism for a non-resident brewery to obtain the same privileges as a resident brewery, the Oregon laws violate the U.S. Constitution by discriminating against interstate commerce and protecting resident businesses.

In recent court filings, the State asked the court to dismiss the case arguing (1) the State is immune from being sued under the Eleventh Amendment without consent from the State or Congress; and (2) the Washington breweries and distributors lack the appropriate standing to sue the State defendants.

In their response, the Washington breweries and distributors argue that the Eleventh Amendment does not bar the lawsuit because, unlike cases cited by the State on this point, they have named, addressed, and contemplated the role the State plays in enforcing the applicable laws. The Washington breweries and distributors also propose an Amended Complaint to address the State’s argument that they lack standing.

The court must now decide whether to grant the State’s request to dismiss the case or to proceed with the litigation. Given the constitutional issues and arguments involved in this case, any decision on the merits will have implications for other state laws similar to the Oregon laws at issue here. We will continue to monitor and report on any significant future developments.