The Heavy Regulation of Home Distilling of Spirits

In the past 30 years, home brewing and wine making have taken off. This entrepreneurial phenomena has sparked an ever growing craft beer and craft wine craze across the country. One would think that such a movement would spread into the home distilling of spirits and liquor. However, such an assumption would be quite wrong. To understand why, one must go back to the time of Prohibition.

History of Home Alcohol Production

Prohibition was instituted with ratification of the 18th Amendment to the U.S. Constitution in 1919, which prohibited the “…manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States…” As a result, commercial and home breweries, vineyards, and distilleries across the United States were closed down or placed into service making malt for non-alcoholic purposes. In 1933, Prohibition came to an end with the passage of the 21st Amendment. However, the legalization of home brewing, wine making, and distilling were not automatic; they required implementing federal legislation. Home wine making was immediately permitted, but due to a clerical mistake, home brewing was left out of the implementing legislation. Home brewing of beer having an alcohol content higher than 0.5% remained illegal until 1978 when Congress passed and President Jimmy Carter signed a bill repealing federal restrictions and excise taxes on the home brewing of small amounts of beer. The law also left the individual states free to pass their own laws regulating and limiting the production of home brewing and wine making. This then created the environment to allow state-by-state experimentation with the regulation of beer and wine making, resulting in the national explosion of home and craft beer and wine.

Continued Regulation of Home Distilling

So, what about home distilling? Well, unlike home brewing and wine making, no law has been passed to exempt home distilling from federal regulation. In fact, two recent attempts to permit home distilling have gone nowhere in Congress (see H.R. 3249 and H.R. 3949). As a result, all distilling of liquor is treated the same – for both commercial and home. This means that one cannot produce spirits for personal or family consumption purposes without paying taxes and without prior approval of federal paperwork to operate a distilled spirits plant. Serious. These numerous, mandatory federal requirements make it relatively impractical to produce spirits for personal or beverage use. Specifically, to home distill, one must (all of these requirements are listed in Title 27, Code of Federal Regulations Part 19.): The failure to do so can lead to multiple federal criminal penalties, found in 26 U.S.C. 5601 and 5602 (i.e. up to 5 years in jail and $10,000 in fines for each offense!).
On top of that, your home state may also regulate you. In California, you are required to register for a distilled spirits manufacturer license and a license to operate a still. Both require an initial application fee and annual fee.

Why So Much Regulation?

So, home distilling continues to be heavily regulated – why? Well, there are basically two camps on this question. One camp believes that home distilling is so regulated to protect the big booze makers from intra-national competition and ensure the federal and state governments continue to receive the cash cow benefits of high taxes. The other camp believes it is really just to protect the public from itself. While distilling does not create alcohol, it does have a whole host of elements which give cause for concern:

  • Requires heating up alcohol to a high temperature
  • Creates flammable methanol and ethanol
  • Improper extraction of methanol and ethanol through condensing pipes could lead to the spirit or liquor being deadly or result in blindness
  • Improper construction of pipes leads to pressure-explosions
  • Difficult to measure the proof of alcohol accurately

As a result, we are left with a heavy hand of government regulation. Thus, it will be difficult for the future Jack Danielses and Johnny Walkers to join their Sam Adamses and Kathleen Inmans brethren through basement or backyard experimentation in the near future.