About Alcohol Policy

Introduction and Background

In the United States, public policies that govern the manufacture, sale, and use of alcohol and define society's responses to alcohol-related problems are established by Federal, State, and local governments.

The legal basis for Federal and State regulation of alcoholic beverages is derived from the United States Constitution. From 1919 until 1933, the 18th Amendment prohibited "the manufacture, sale, or transportation of intoxicating liquors" in the United States and its territories. At the end of 1933, Congress ratified the 21st Amendment, repealing national Prohibition and granting States broad power to regulate alcoholic beverages.

Ratification of the 21st Amendment gave States the authority to either permit or prohibit importation or sale of alcoholic beverages within their borders; to determine the specific structure of alcohol distribution within their borders; and to regulate various aspects of alcohol sales and possession. These powers, however, do not preclude regulation by the Federal Government. The Commerce Clause of the Constitution also grants the Federal Congress the authority "[t]o regulate Commerce with foreign Nations, and among the several States..." —an authority that has been broadly interpreted over the past half century. In addition, the U.S. Congress may use its taxing power, granted under Article 1 of the Constitution, to assess and collect taxes on alcoholic beverages. Finally, the Federal Government may regulate alcoholic beverages in all areas subject to direct Federal control, such as public lands or military bases.

Federal law can also influence State alcohol policies by means of financial incentives. For example, Federal law requires that a portion of Federal highway funding be withheld from any State that allows the purchase or public possession of alcoholic beverages by persons under the age of 21 years.

States vary in the amount of authority they allocate to local government to regulate alcoholic beverages. In many States, municipalities or other local government agencies create laws (often called ordinances) that regulate the sale and distribution of alcohol within their jurisdictions. In other States, alcohol control is retained at the State level with little or no regulation originating at local levels.

The Preemption Doctrine

The preemption doctrine holds that higher levels of government can mandate in certain situations the actions and practices of lower levels of government. Thus, State and local governments must adhere to policies appropriately mandated by the Federal government, and local governments must adhere to policies appropriately mandated by State governments.

As noted above, alcohol policy has a unique position with regard to Federal preemption. Because of the 21st Amendment, Federal law cannot restrict or preempt most State alcohol-related laws. However, by virtue of the Supremacy Clause in Article VI of the Constitution, Federal preemption may still come into play if a State law conflicts with other Constitutional provisions (such as the Interstate Commerce clause) or falls outside the scope of the 21st Amendment (such as restrictions on health delivery systems). In APIS, the Wholesale Pricing Practices and Restrictions and Health Insurance Parity policies therefore may be impacted by Federal preemption, as noted in the descriptions of those policies.

State preemption, which limits the authority of local governments, is applied differently across States and policies and can have a significant effect on the nature and scope of alcohol policies at the local level. As noted above, many States permit local alcohol policy regulation. However, most States apply the preemption doctrine to at least some degree, limiting local authority generally or prohibiting local regulation of specific policies.[1] Because APIS is focused on State law, State preemption is not addressed in its analysis, although its potential impact is noted in the Explanatory Notes and Limitations Applicable to All APIS Policy Topics section for each policy.

Types of Law

As noted above, alcohol policy is established by Federal, State, and local laws. In some cases, State and Federal constitutional grants of authority overlap. In addition, all three branches of State and Federal Governments—the executive, the legislative, and the judicial—affect the framework of alcohol policy in the United States.

Statutory Law

Every State and the Federal Government publish statutory laws in two forms: enacted bills and codified statutes. Enacted bills are those bills enacted into law during a given legislative session. Enacted bills create new laws or amend existing laws. Codified statutes are the enacted bills organized by subject.

To interpret enacted bills, examination of statutory codes is necessary. A single enacted bill can affect multiple codified statutes. Similarly, a codified statute may be the result of multiple enacted bills from one or more legislative sessions.

Administrative Law

Every State and the Federal Government also creates administrative laws, often called "regulations." Generally, administrative regulations are created by executive agencies under authority already established by statutory laws. Typically, administrative regulations are first entered in registers or other record forms. Later, the administrative regulations are codified by subject for ease of reference.

A great deal of governance surrounding alcohol policy is found in State administrative codes or the codes of the U.S. Government, including the Federal Register and the Code of Federal Regulations. States vary in their requirements for issuing formal regulations, and many governance decisions may be made in administrative decisions that are not included in a State's administrative code. Administrative agencies may also have review processes designed to resolve conflicts arising under or requiring the application of administrative regulations. The resulting administrative decisions also have the effect of law.

Case Law

Law is also defined by courts charged with resolving cases requiring the interpretation, application, or implementation of various laws. The Federal court system is separate from those of each of the States. Each system has its own hierarchy of appellate courts to review the decisions of the lower or trial courts. The opinions issued by these courts are known as decisions, or "cases," and are collectively referred to as "case law."

Courts only review a particular law when asked by a public entity or a private party. All court cases start at the trial level and most decisions are made by the trial courts without further review. Trial court cases have little or no effect (have little precedential value, in legal terms) beyond the jurisdiction where the trial court is located, and trial court decisions are not widely reported or easily accessible.

Parties dissatisfied with a trial court's application of the law can seek review from an appeals court, with the U.S. Supreme Court the final arbiter of Federal law and State Supreme Courts the final arbiter of State law. Appellate cases are routinely reported and have precedential value within the jurisdiction where the appellate court sits.

APIS does not include information on case law.

Issues Treated By Alcohol-Related Law

For a list of alcohol policy areas addressed by APIS, as well as a framework for classification of policies by cross-cutting dimensions, consult the Alcohol Policy Taxonomy.

Citations and Relevant Text Excerpts

U.S. Const., art. 1, §. 8, cl. 3: Regulation of Commerce

…The Congress shall have Power…

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

U.S. Const. art. VI, cl. 2

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

U.S. Const., amend. XXI

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.

1. Mosher, J, Treffers, R. State preemption, local control, and alcohol retail outlet density regulation. Am. J. Prev. Med. 2013; 44(4) 399-405.