This appeal involves a facial challenge, under the dormant Commerce Clause of the United States Constitution, to various aspects of Virginia’s Alcoholic Beverage Control Act (“ABC Act”), Va. Code § 4.1-100 et seq., which generally prohibits the importation, distribution, and sale of wine and beer in Virginia except through a regulated, three-tier structure. We sustain the constitutionality of:
(1) Virginia Code § 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and
(2) Virginia Code § 4.1-119(A), which authorizes stateowned and -operated ABC stores to market and sell only wine produced at Virginia “farm” wineries.
Accordingly, with respect to these two aspects of the ABC Act, we reverse the judgment of the district court, which concluded that these provisions unconstitutionally discriminated against interstate commerce.
With respect to challenged provisions of the ABC Act that permit in-state producers of wine and beer, but not out-of-state producers, to bypass the three-tier structure and sell directly to in-state retailers and consumers — Virginia Code §§ 4.1-112.1(B); 4.1-207(4),(5); 4.1-208(1),(7) — we conclude that Virginia legislative amendments enacted while this appeal was pending render the challenge to those
provisions moot and therefore bar us from considering the district court’s order and the amended provisions. Accordingly, with respect to them, we dismiss the appeals, vacate the district court’s judgment, and remand for dismissal of the claims challenging those provisions.
Finally, with respect to the district court’s conclusion that the plaintiffs in this case are entitled to maintain their action under 42 U.S.C. § 1983 and therefore qualify for an award of attorneys fees if they are the prevailing party, as provided by 42 U.S.C. § 1988, we affirm.