Alcohol, Tobacco, and Controlled Substances: An Overview

Health and other public concerns have generated detailed Federal and state regulation of the sale and possession of alcoholic beverages, tobacco products, and a wide range of other "controlled substances." The distinctive history of Prohibition, repealed by the Twenty-First Amendment to the U.S. Constitution, gives particular complexity to the mix of Federal and state law governing alcohol.

Absent any specific regulation, these substances are treated like all other forms of personal property. However, the general rights of property are subject to so-called "police power" regulations of the state, local, and federal governments.

The regulation of alcohol is generally focused on "intoxicating beverages" with the exact definition of "intoxicating" varying from statute to statute. In many jurisdictions, it has been held that the list of liquors subject to regulatory or prohibitive enactments, particularly when such a list is followed by an expression akin to "or other intoxicating liquors" must be intoxicating in fact. Many statutes either refer to "intoxicating liquors" generally, or prescribe an alcoholic percentage cut off. In Mississippi, it has been held that the prohibition of the sale of alcoholic liquor does not apply to a beverage containing less than two tenths of one percent (0.2%) of alcohol.

The police powers of the Federal government are limited to regulating matters which are connected with one of the powers expressly granted to the government by the U.S. Constitution, and which do not infringe on the police powers of the states. This means that the Federal government lacks the power to regulate liquor sales by one citizen to another within the territorial limits of a given state, or to prescribe liquor-related business within any state. Because of the commerce clause, however, the Federal government can and does regulate the importation and interstate transportation of intoxicating liquors; see the Federal Alcohol Administration Act of 1935, 27 U.S.C. §§ 201 et seq.. The federal government also has the power to regulate liquor sales in D.C., and where it has exclusive authority such as on government owned military reservations, and with Indian tribes. In all other situations, the states' police power controls alcoholic beverage law. The federal government has, however, used financial incentives built into its funding of highways to establish a national minimum drinking age. See 23 U.S.C. § 158.

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