New Federal Legislation Introduced to Address Litigation Against States

As readers of this blog note, there are many forms of alcohol litigation across the country.    To address one vein of the litigation, Congress has introduced H.R. 1161 the Community Alcohol Regulatory Effectiveness  (CARE) Act.    This legislation is similar to a manager’s amendment  to last year’s bill offered toward the end of the 111th Congress.

H.R. 1161 was introduced on March 17, 2011. The bill can be read here.   It was introduced with 9 bi-partisan co-sponsors from across the country.   It has been referred to the Judiciary Commmittee chaired by Congressman Lamar Smith (R-TX) who co-sponsored last year’s version.   Last year’s Judiciary Committee Chairman John Conyers (D-MI) has already signed onto H.R. 1161.  Information on co-sponsors or action on the legislation can be found at this link.  

Although there are many attempts to attack state alcohol laws, this legislation is limited to addressing the issues raised by the dormant Commerce Clause.  (Last year’s bill would have addressed more forms of litigation against the states.)    HR 1161 is modeled after laws that have already passed while capturing the Granholm v. Heald holding.  For example, Congress has clarified the dormant Commerce Clause as recently as 2005 in the Reaffirmation of Resident and Non Resident Hunting Act of 2005 PL 109-13, section 6036; 119 Stat. 231,289-290 as well as the long-standing McCarron-Ferguson Act which regulates insurance.

Here is a link to more comprehensive information on the bill.  A section by section analysis can be found here. 

Highlights of the new CARE Act:

• Clarifies the dormant Commerce Clause for alcohol regulation.
• Makes clear that states cannot discriminate  against producers on its face (e.g. saying in text of the law “in state can do ABC, but out of staters cannot do ABC) or intentionally (e.g. laws constructed that seek to intentionally discriminate against out of state producers.
• Clarifies the Wilson Act to ensure a future court will interpret the CARE Act as intended.
• Notes alcohol is a different product and that the states should continue to regulate it.

   The bill is quite limited and it is semi-amusing to see the hyperbole and falsehoods being lodged against it.   Please read the bill for yourself.