On April 15, 2010, HR 5034, also known as the Comprehensive Alcohol Regulatory Effectiveness Act of 2010 (the "CARE Act") was introduced into the US House of Representatives. This alert does not summarize the CARE Act, but clarifies one rumor regarding the effects of the CARE Act, and explains one effect of the many the bill would have.

The CARE Act would not ban direct shipment of wine. Current state laws would not be effected by the CARE Act.

The CARE Act would eliminate judicial review of alcohol regulation under the dormant Commerce Clause. This is significant because the most important recent Supreme Court case addressing state regulation of alcohol, Granholm v. Heald,[1] was based on a dormant commerce clause challenge to state laws. If passed, the CARE Act would render Granholm, and future dormant commerce clause challenges to state laws regulating alcohol, moot.

The CARE Act would eliminate judicial, dormant commerce clause scrutiny of state laws regulating alcohol.

The CARE Act would render state laws regulating alcohol invulnerable to challenges based on the dormant commerce clause of the Constitution[2] The dormant commerce clause is a principle which states that because only Congress has the power to regulate interstate commerce, then no State may enact laws that impact interstate commerce.

Application of the dormant commerce clause to the regulation of alcohol is complex. Because of Prohibition and its repeal, States have more authority to regulate alcohol than other substances. Specifically, the 21st Amendment to the Constitution states "(1) The eighteenth article of amendment to the Constitution of the United States [which instituted Prohibition] is hereby repealed. (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."

The interplay of the 21st Amendment and the dormant commerce clause were addressed in Granholm. In that case, small wineries from California and Virginia challenged laws of Michigan and New York claiming those laws discriminated against the small wineries in violation of the dormant commerce clause.

The Supreme Court agreed with the small wineries holding that the 21st Amendment does not trump the dormant commerce clause. Although States have broad power to regulate liquor under Section 2 of the 21st amendment, that does not mean the States can use discriminatory means to regulate liquor because this would violate the dormant commerce clause.

The CARE Act would alter this situation. The CARE Act is an explicit choice by Congress to NOT regulate alcoholic beverages while approving of current state regulation. This means that state laws regulating alcohol are no longer subject to dormant commerce clause challenge, because as the Supreme Court held in another commerce clause case, Western, once "Congress ordains that the States may freely regulate an aspect of interstate commerce, any action taken by a State within the scope of the congressional authorization is rendered invulnerable to Commerce Clause challenge."[3] In Western, an out of state insurance company challenged a California tax that only applied to out of state corporations. The Court held the tax was constitutional under the Commerce Clause, notwithstanding the discrimination between businesses based on their state of origin, because Congress explicitly gave up its authority to regulate insurance and gave it to the states under the McCarren-Ferguson Act.[4]

The language used by Congress in the McCarren-Ferguson Act to give up its regulatory authority over insurance is strikingly similar to the language used by Congress in the CARE Act to give up its regulatory power over alcohol. Compare:

the McCarren-Ferguson Act: "Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States."[5]

to the CARE Act: "[E]ach State or territory shall continue to have the primary authority to regulate alcoholic beverages...[S]ilence on the part of Congress shall not be construed to impose any barrier under clause 3 of section 8 of article I of the Constitution (commonly referred to as the ‘Commerce Clause') to the regulation by a State or territory of alcoholic beverages.

From the similar language, it seems reasonable to assume a similar result: alcohol regulation, like insurance regulation, will be invulnerable to judicial dormant commerce clause scrutiny if the CARE Act is passed. This means that decisions like Granholm would be very unlikely and that States will have fewer barriers to enact laws that discriminate against out of state producers alcohol.

Thus, producers of alcoholic beverages are urged to act now to influence their representative in Congress.