This аppeal calls upon us to assess Maine’s decision to allow small wineries to operate partially outside the usual strictures of the State’s alcohol control laws. The plaintiffs challenge this decision on the ground that it constitutes impermissible favoritism in violation of the dormant commerce clause. The district court found the challenge wanting.
While the central principles on which the dormant commerce clause operates are well-developed, gray areas exist around the edges. We believe that Maine’s exception for smаll wineries falls within one of these gray areas — and in those precincts, courts must proceed case by case. Here, after careful perscrutation of Maine’s statutory scheme and its constitutional implications, we find no substantial evidence that the exception for small wineries actually discriminates against interstate commerce. Consequently, we affirm the judgment of the district court.
I. BACKGROUND
This case has been submitted on a stipulated record. Those stipulations limn the statutory scheme by means of which Maine regulates the sale of wine. To any extent that the statutes themselves are ambiguous, we assume that they operate and are enforced in the manner agreed upon by the parties.
A. The Statutory Scheme.
As a general matter Maine, like many states, has chosen to regulate the distribution of alcoholic beverages by requiring that producers sell exclusively to licensed wholesalers who, in turn, may sell only to licensed retailers. Consumers may purchase alcoholic beverages for off-premises consumption only from licensed retailers and may do so only in face-to-face transactions. This three-tiered system has been justified оn multiple grounds: as an efficient means of controlling the distribution of alcoholic beverages, as an effective means of promoting temperance, and as a facilitating means of collecting excise taxes.
See, e.g., North Dakota v. United States,
Consistent with this three-tiered system, Maine wineries may, for the most part, sell their wares in-state only to wholesalers. See Me.Rev.Stat. tit. 28-A, § 1361. But this edict admits of an еxception for small vintners that obtain special “farm winery” licenses. See id. § 1355(3). To qualify for a farm winery license, a vineyard must produce no more than 50,000 gallons of wine annually, see id. § 1355(3)(A), and must pay a modest license fee ($50 per year), see id. § 1551(3)(F). There are no geographic restrictions applicable to farm wineries, and licenses are available on the same terms to wineries located throughout the United States. Despite this equal footing, no winery outside of Maine has yet applied for a farm winery license.
Farm wineries enjoy a number of special prerogatives. For one thing, they may bypass wholesalers and sell directly to retailers and restaurants. Id. § 1355(3)(D). For another thing, they may sell directly to consumers; provided, however, that the transactions take place on the winery’s premises or at one of up to two off-site locations established by the winery. Id. § 1355(3)(B)-(C). Out-of-state wineries may establish off-site sales outlets on the same basis as in-state wineries.
Sales made by farm wineries directly to consumers, wherever consummated, must be face to face. Id. This means, of course, that wine cannot be direct-shipped from a winery to a consumer. Indeed, Maine law expressly forbids the furnishing of alcoholic beverages via mail order services, see id. § 2077-B, and farm wineries are not exempt from that prohibition. Were a non-Maine winery to obtain a farm winery license, it too would be subject to this prohibition and could sell its products to Maine consumers only on the winery’s premises or at a designated off-site location.
An additional provision of the statutory regime impinges indirectly upon the ability of out-of-state wineries to sell directly to Maine consumers. See id. § 2077. That provision prohibits a Maine resident from bringing more than four quarts of wine (tyрically five bottles) into the state. Id. Individuals may obtain relief from this import limitation only by special request. Id. § 2073(3)(A). Such requests are evaluated on a case-by-case basis by a state agency. Id. The parties have stipulated that, when requested, such permission is “generally granted.” In the absence of such a dispensation, a Maine resident visiting an out-of-state winery and purchasing wine in person would be statutorily forbidden from bringing more than four quarts home with her, and the winery would be statutorily forbidden from shipping purchased wine to consumers in Maine.
B. Travel of the Case.
We turn now from the statutory scheme to the particulars of this case. On September 27, 2005, two plaintiffs — Dr. Philip Brooks, a Maine resident and oenophile, and Cherry Hill Vineyard, LLC, an Oregon winery that produces fewer than 50,-000 gallons of wine a year- — filed a civil action in Maine’s federal district court against a number of state hierarchs. 1 In their complaint, they alleged that Maine’s farm winery program, in conjunction with the prohibition on direct shipping, has the effect of discriminating against interstate commerce in violation of the dormant com *32 merce clause. 2 They prayed for a declaration that the statutory scheme is unconstitutional insofar аs it prevents out-of-state wineries from selling their merchandise directly to Maine consumers. Relatedly, they sought injunctive relief barring enforcement of sections 1361(4), 2077, and 2077-B against wineries that choose to sell or ship their wares directly to Maine consumers.
The State defended the face-to-face transactional requirement and the related restriction on direct shipping as necessary to prevent underage persons from gaining access to alcoholic beverages. Wholesalers and retailers have a vested interest in the three-tiered system аnd, by leave of court, a trade group — the Maine Beer and Wine Wholesalers Association — appeared as an amicus curiae in support of the statutory scheme.
The parties compiled a stipulated record and cross-moved for summary judgment. The district court referred the motions to a magistrate judge, who concluded that the face-to-face transactional requirement and the related ban on direct shipping, as memorialized in Maine’s statutory scheme, did not discriminate against interstate commerce but, instead, comprised a reаsonable exercise in regulation designed to forestall the sale of alcoholic beverages to minors.
Cherry Hill Vineyard, LLC v. Baldacci,
Civ. No. 05-153,
We note, with appreciation, that five separate sets of amici have filed helpful briefs (all of them urging affirmance of the judgment below). There is an interesting wrinkle concerning the arguments advanced by the amici. The plaintiffs, citing our decisions in
United States v. Sturm, Ruger & Co.,
II. ANALYSIS
Because the district court acted under the aegis of Federal Rule of Civil Procedure 56, our review is de novo.
See Auburn Police Union v. Carpenter,
The doctrine that surrounds this principle, sometimes referred to as the dormant commerce clause, holds that a state regulation that discriminates against interstate commerce on its face, in purpose, or in effect is highly suspect and will be sustainеd only when it promotes a legitimate state interest that cannot be achieved through any reasonable nondiscriminatory alternative.
Id.
Laws that regulate evenhandedly and only incidentally burden commerce are subjected to less searching scrutiny under a balancing test, which operates to validate a challenged regulation unless it burdens commerce in a way that is “clearly excessive in relation to the putative local benefits” to be derived therefrom.
Wine & Spirits
Retailers,
A. The Plaintiffs’ Argument.
This is a rifle-shot appeal. The plaintiffs do not advance any argument under the Pike balancing tеst. They must, therefore, avail themselves of the strict scrutiny reserved for statutes that frankly discriminate against interstate commerce. Even within that taxonomy, the plaintiffs’ objection is narrow; they forgo any argument that the challenged portions of Maine’s statutory scheme are discriminatory either on their face or in their conceived purpose.
Winnowing out these possibilities, the plaintiffs pin their hopes on the isthmian claim that the challenged portions of the Maine regime are discriminatory in effect, that is, that by allowing direct sales to consumers only in face-to-fаce transactions, the statutory scheme has the practical effect of benefitting Maine wineries at the expense of their out-of-state competitors. In advancing this argument, the plaintiffs remind us that, for this purpose, discrimination has been broadly defined as “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.”
Or. Waste Sys. v. Dep’t of Envtl. Quality,
Challenges of this type have a theoretical basis in the case law. Even facially neutral laws enacted without discriminatory motive and in furtherance of legitimate local objeсtives may be discriminatory in effect (and, thus, engender strict scrutiny under the jurisprudence of the dormant commerce clause).
See, e.g., Hunt v. Wash. State Apple Adver. Comm’n,
When such a challenge is mounted, the initial burden of establishing discrimination rests with the challenger.
See Hughes v. Oklahoma,
With this background in place, we frame the issue. The plaintiffs argue that the requirement that direct sales take place on winery premises effectively prеvents out-of-state wineries, many of which are geographically distant, from enjoying any real opportunity of selling directly to consumers. In-state wineries, the plaintiffs say, are not similarly disadvantaged
*34
because consumers can much more readily travel to their premises. So, the plaintiffs’ thesis runs, the regime’s effect is to raise the cost of, say, west coast wines as compared to Maine wines since the former will, as a practical matter, be available to consumers only after the addition of hefty “middleman” mark-ups.
3
See generally Granholm,
The plaintiffs conclude by asserting that the discriminatory burden imposed by the face-to-face sales requirement and the related ban on direct shipping cannot be justified as necessary to any legitimate governmental interest. They insist that the State can fulfill its goal of restricting access to alcoholic beverages on the part of underage youths by, say, mandating that carriers delivering wine to direct purchasers confirm that recipients are at least twenty-one years of age. See, e.g., Mich. Comp. Laws § 436.1203 (taking this approach). On this basis, the plaintiffs asseverate that the face-to-face requirement and the related ban on direct shipping cannot withstand strict scrutiny.
B. The Rejoinder.
Although vigorously asserted by able counsel, this argument lacks force. When all is said and done, the plaintiffs have not satisfied their initial burden of showing that Maine’s statutory scheme is discriminatory in effect. Without such evidence, we must defer to the state legislature, which “has ‘virtually complete control’ over the importation and sale of liquor and the structure of the liquor distribution system.”
North Dakota,
To be sure, the plaintiffs cite a plethora of cases in endeavoring to demonstrate that the expense added by the restriction on direct shipment оffends the dormant commerce clause. But these decisions are not capable of carrying the weight that the plaintiffs load upon them.
The plaintiffs’ most loudly bruited authority is
Granholm,
in which the Supreme Court invalidated Michigan and New York restrictions on the direct shipping of alcohol by out-of-state wineries. Despite some superficial similarities, the fit between
Granholm
and this case is not exact and, thus, the decision is of limited utility here.
5
*35
The novel aspect of
Granholm
was the Court’s holding that the Twenty-First Amendment — a constitutional provision dealing with the regulatory power of the several states in regard to the manufacture, distribution, and sale of alcoholic beverages — cannot salvage explicitly discriminatory regimes even though the regulated product is an alcoholic beverage.
See Granholm,
Both the Michigan and New York schemes invalidated in
Granholm
discriminated against out-of-state purveyors — and did so in ways that long have been understood to be unconstitutional.
See id.
at 467,
The New York scheme was closer, but still different; it allowed wineries to direct-ship only if they first established a physical presence in New York.
See id.
at 474,
We concur with the latter courts. The plaintiffs in this case overlook a key distinction between the New York and Maine statutes. New York created an additional barrier to the entry of out-of-state wineries into the direct-shipping market — a barrier that Maine has not erected. To elaborate, New York created a direct-shipping market for wine; it allowed direct shipping on particular conditions, and those conditions were rigged to favor in-state wineries (which, unlike out-of-state wineries, would not have to set up separate sales outlets within New York’s boundaries).
See Granholm,
*36
By the same token, most of the other cases chronicled by the plaintiffs involve statutes that — unlike the Maine regime at issue here — explicitly discriminate against out-of-state goods or products.
See, e.g., id.
at 99,
We are, then, on
term incognita.
In the absence of any explicit (i.e., facial) discrimination, the plaintiffs must persuade us that Maine’s evenhanded requirement that
all
wine purchases be made face to face camouflages some more sinister reality: that its practical effect is invidiously discriminatory. This is a burden that litigants. in analogous cases ordinarily have failed to carry.
See, e.g., Brown & Williamson Tobacco Corp. v. Pataki,
The Supreme Court has not directly spoken to the question of what showing is required to prove discriminatory effect where, as here, a statute is evenhanded on its face and wholesome in its purpose. In our view, that showing must be substantial — and an examination of the evidence in the record satisfies us that the plaintiffs have not pushed past this plateau. We explain briefly.
We previously have held that a plaintiff bringing a dormant commerce clause challenge based exclusively on the allegedly discriminatory effect of a statutory scheme is required to submit some prоbative evidence of adverse impact.
See Alliance of Auto. Mfrs.,
Sweeping aside rhetorical flourishes, the plaintiffs have proffered no evidence that permitting farm wineries to sell only face to face, either on premises or at approved in-state locations, discriminates against interstate commerce. There is no evidence that Maine law acts to protect Maine vineyards or that Maine consumers substitute wines purchased directly from Maine vineyards for wines that they otherwise would have purchased from out-of-state producers. There is not even evidence that any wines at all are purchased by consumers directly from Maine vineyards. And, finally, nothing contained in the stipulated record suggests that the locus option somehow alters the competitive balance between in-state and out-of-state firms.
Cf. Hunt,
*37
The substitution scenario is further weakened by the fact that the plaintiffs have adduced no evidence that would in any way undermine the plausible impression that Maine consumers (like imbibers everywhere) view trips to a winery as a distinct experience incommensurate with— and, therefore, unlikely to be replaced by — a trip to either a mailbox or a retail liquor store.
See Jelovsek,
The plaintiffs’ principal effort to fill this void involves a report prepared by the Federal Trade Commission (FTC). Drawing on this report, they argue that the ban on direct shipping raises the cost of out-of-state wines and prices some wines out of the Maine market altogether. FTC, Possible Anticompetitive Barriers to E-Commerce: Wine (July 2003) [FTC Report], available at http://www.ftc.gov/os/2003/07/ winereport2.pdf (last visited Sept. 20, 2007). But nothing in the FTC Report establishes that the farm winery exception disproportionately burdens interstate commerce.
The plaintiffs also repeatedly cite
Associated Indus, of Mo. v. Lohman,
In short, there is simply no evidence that out-of-state wineries suffer any disproportionate loss of business on account of Maine’s direct-shipping ban. The plaintiffs have made no showing that any discrimination vis-a-vis access to the Maine market actually results from the farm winery exception itself. While the FTC Report and the plaintiffs’ other evidentiary proffers suggest that a direct-shipping ban harms out-of-state producers, the plaintiffs acknowledge that the “constricted availability of wine is due in large part to the three-tier system itself.” Appellants’ Br. at 10. Because the three-tiered system has not been challenged here, this acknowledgment undercuts any inference that the allegedly discriminatory farm winery exception is responsible for the perceived harm. 8
The plaintiffs’ response to this lack of evidence is an assertion that even if “the impact is small because direct sales do not constitute a significant market and ... instate wineries do not do much walk-in business,” the regime is nonetheless unconstitutional because the dormant commerce clause contains no de minimis exception. Appellants’ Reply Br. at 8. But thе case upon which they rely for this proposition,
Camps Newfound/Owatonna v. Town of Harrison,
The de minimis standard, when usеd in cases involving facially discriminatory laws, speaks to the degree of discrimination. It cannot sensibly be used to answer the different question of whether discriminatory effect exists. In other words, it is only once the fact of discrimination has been proved that the de minim-is standard comes into play. It follows that the plaintiffs cannot succeed in this case merely by invoking the de minimis standard and ignoring their burden to proffer substantial evidence of discrimination.
This result appeals to common sense. Were we to require no showing beyond the
*39
de minimis level, no distinction would exist between the discriminatory effect test and the incidental burden test employed by the Supreme Court in
Pike,
In a last-ditch effort to put the genie back in the bottle, the plaintiffs essay a naked appeal to the logic of the argument that some discriminatory effects must result from a regime that allows consumers to go tо in-state wineries and buy as much wine as they want but precludes them from ordering wine directly from out-of-state wineries. Conjecture, however, cannot take the place of proof. 9
III. CONCLUSION
We need go no further. The short of the matter is that the plaintiffs have not carried their burden of showing that the challenged regulation is discriminatory in effect. In the absence of such a showing, the plaintiffs’ constitutional challenge fails.
Affirmed.
Notes
. The defendants, all of whom are sued in their official capacities, are the governor, the attorney general, and the two ranking officers of Maine's Bureau of Liquor Enforcement. We sometimes refer to the defendants, collectively, as "Maine” or "the State.”
. We think it noteworthy that the plaintiffs have not challenged the importation limit, see Appellants’ Br. at 15 n. 18, but, rather, treat it as aggravating the unconstitutional discrimination of which they complain. Because the plaintiffs have chosen to focus their challenge on the farm winery exception and the face-to-face sales requirement, we eschew any particularized analysis of the constitutionality of the importation limit.
. In mounting this argument, the plaintiffs attempt to distinguish between the cost attributable to the statutory requirements and any added expense that is attributable to geographic reality (for example, the fact that Oregon wine must be shipped cross-country in order to reach Maine consumers will inevitably add to its cost).
. Although the plaintiffs do not challenge Maine’s four-quart importation limit, see supra note 2, they complain that their disadvantage is compounded by that limit. In practice, the importation limit prevents even committed wine collectors who are willing to travel from bringing home enough wine to justify the journey.
.The
Granholm
Court did express skepticism as to whether a ban on direct shipping furthers the goal of limiting the access of underage youths to alcohol.
See
. The plaintiffs question the discussion in Je-lovsek, presently pending on appeal before the Sixth Circuit, on the ground that the case was decided on the pleadings. Whatever the situation in Jelovsek, the plaintiffs here had ample opportunity to flesh out the record, yet they still have not been able to furnish probаtive evidence of discriminatory effect.
. Cherry Hill's complaint that it will be forced to establish off-site locations geographically closer to Maine consumers in order to attract Maine business appears in some sense to be a complaint about the effects of geography. Distance is not congruent with state lines, and the effects of geography alone do not constitute impermissible discrimination. An effect is not discriminatory, in violation of the dormant commerce clause, if it results from natural conditions.
See Doran v. Mass. Turnpike Auth.,
. To be sure,
Granholm
may reflect a retrenchment of thе broad state power over the distribution and sale of alcoholic beverages that characterized earlier Supreme Court jurisprudence. But it does not appear, on the basis of
Granholm
alone, that a challenge can successfully be mounted to the three-tiered system.
See Granholm,
. In any event, this sortie smacks of an attack on the import limitation-and the plaintiffs have foresworn any direct attack on that limitation. See supra note 2. They cannot have their cake and eat it too.