Citation

Grossman E, Mosher JF. J. Med. Law 2011; 15(2): 177-201.

Copyright

(Copyright © 2011, Michigan State University College of Law)

DOI

unavailable

PMID

unavailable

Abstract

After the 21st Amendment to the United States Constitution repealed Prohibition, many States chose to regulate alcohol through the establishment of a three-tier system of alcohol producers, wholesalers, and retailers (often referred to as "tied house" laws), strictly separating the production and retail tiers of the industry. Tied house provisions often include specific wholesaler pricing restrictions, such as bans on volume discounts, minimum markup / maximum discount provisions, and post-and-hold requirements.


Public health advocates have in the past considered tied house provisions to be instruments of the marketplace with little or no connection to public health concerns. This perception is being reassessed.


This article provides an analysis of the legal landscape regarding the validity of alcohol wholesaler pricing restrictions. It reveals that the courts have largely abandoned the original intent of the 21st Amendment (which repealed Prohibition in 1933) – to grant States the primary responsibility in regulating the alcohol trade as a means to protect public health and safety. Recent cases have subordinated this purpose in favor of protecting commercial interests pursuant to the Interstate Commerce Clause of the Constitution. The States, the courts and the public health community each have a role to play to restore the powers granted by the 21st Amendment and to enhance the public health benefits of wholesaler pricing policies while also protecting them from future legal challenges.

Language: en