Understanding the importance of the 21st Amendment in state-based regulation

Effective state law is a necessary condition for successful local public health initiatives to control the consumption of alcohol. Under the aegis of the Twenty-first Amendment, state-based regulation of alcoholic beverage reflected an appreciation that laws were necessary, but not sufficient to control abuse. Laws were to be sufficiently restrictive so as not to stimulate excessive consumption and abuse, but not so restrictive as to stimulate illicit and therefore unregulated manufacture, distribution and sale. The public health community after the repeal of Prohibition was focused largely on alcoholics, an approach that met with industry approval. In recent decades, public health advocacy has evolved, less confident of the identity of abusers, and more concerned with strategies to reduce aggregate demand. However, judges are moving in the opposite direction. They demand quantified evidence of the success of each specific regulation in reducing abuse and are skeptical of the pro-temperance purpose of trade practices legislation and other indirect legal mechanisms to constrain the industry's effort to stimulate sales. This presentation will explain why public health advocates should be concerned that courts are seemingly rejecting aggregate solutions and instead relying on targeted approaches, and will suggest how to defend state crucial regulation.