Brewing by the Books

Brewing by the Books:

The Regulation of Brewing throughout American History

By: Michael J. Slocum (July 2011)

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In December 1620, the Mayflower laid anchor at Cape Cod in modern-day Massachusetts. While several of its crew gave chase to a band of Indians, the pilgrims aboard ship debated whether to press on – as had been their original intention – or to establish a settlement where they were. Among their more immediate concerns was the rapidly depleting store of beer: “We had yet some beer, butter, flesh and other victuals left, which would quickly be all gone; and then we should have nothing to comfort us. … So in the morning, after we had called on God for direction, we came to this resolution – to go presently ashore again and to take a better view of two places which we thought most fitting for us; for we could not now take time for further search or consideration, our victuals being much spent, especially our beer, and it being now the 19th of December.”

Thus did beer (or, more precisely, the lack of beer at hand) play a role in the birth of America. In the centuries to come, brewing would take its place as one of the pillars of American industry. And the regulation of that industry would provide fertile ground for political and legislative debate. This article provides a brief history of that regulation.

Beer as Viewed by the Fathers and Founders

That George Washington was fond of porter – and had even developed his own recipe, which relied rather heavily on molasses – is a bit of trivia well-known among home brewers. That Thomas Jefferson likewise enjoyed his (often home-brewed) ale is also common knowledge.

Less well known, however, is that many of the Founding Fathers considered beer to be not merely a pleasant distraction from the work of creating a nation, but rather a cornerstone upon which that nation might be built. In the 1780s, James Madison expressed his earnest desire “that the brewing industry would strike deep root in every State in the Union.” And Jefferson, concerned that the widespread consumption of distilled liquors would lead to social ruin, favored affordable beer because “no nation is sober when the dearness of fermented drinks substitutes ardent spirits as the common beverage.”

Madison and Jefferson were hardly alone in their views. [1] In fact, some of the earliest legislative enactments of the nascent American States were concerned with nurturing the brewing industry. In 1789, for example, Massachusetts passed a bill exempting breweries from certain taxation on grounds that “The manufacture of strong beer, ale and other malt liquors will promote the purposes of husbandry and commerce by encouraging the growth of such materials as are peculiarly congenial to our soil and climate and by procuring a valuable article of exportation” and that “The wholesome qualities of malt liquors greatly recommend them for general use as an important means of preserving the health of the citizens of this commonwealth, and to prevent the pernicious effect of spirituous liquors.” New Hampshire in 1792 likewise gave breweries a tax break, as “The manufacture of malt liquors in this State will tend to promote agriculture, diminish the use of ardent spirits and preserve the morals and health of the people.”

Unfortunately for America’s brewers, this favorable view of their trade was not to last long.

The Temperance Movement and National Prohibition

During the 1800s, Americans’ thirst seemed unquenchable. By 1830, the adult population of the United States drank an average of seven gallons of alcohol annually – equivalent to more than one and a half modern-day bottles of hard liquor each week. Beer was a major contributor. In 1850, Americans drank some 36 million gallons – by 1890, the annual consumption rate had increased twenty-four-fold to 855 million gallons.

The impact this rate of consumption had upon workers’ production, the frequency of lawless and often violent behavior attributed to the saloon and liquor industry, and the deleterious effects to the population’s health in general, all contributed to the growing ranks of prohibitionists across the nation. Speaking to a temperance meeting in 1842, Abraham Lincoln described intoxicating liquor as “the devastator.” While Lincoln personally viewed compulsory prohibition as a bad idea, he nonetheless believed that his fellow countrymen would benefit greatly from more widespread voluntary abstinence and temperance. Others, of course, had less faith in the prospects of a voluntary temperance taking nationwide root, and advocated instead for the legal prohibition of drink.

Prohibition organizations began to spring up all over America: organizations such as the Washingtonian Movement in Baltimore; Mother Thompson’s Crusade out of New York, and its successor, the Woman’s Christian Temperance Union; and perhaps most famously, the Anti-Saloon League from Ohio. The prohibition movement would in time claim the support of many prominent figures, including Susan B. Anthony, Phineus T. Barnum, and the infamous Carry Nation, renowned for taking her hatchet to many a saloon’s beer supply.

As the 19th Century marched on, it witnessed a series of state-wide prohibition laws. Maine, in 1851, became the first state in the nation to prohibit the manufacture and sale of intoxicating beverages. A dozen more were to follow, and it was not long before the prohibitionists, focusing their efforts through the Anti-Saloon League, turned their sights on national prohibition.

Speaking in the U.S. House of Representatives in December 1914, Richard P. Hobson of Alabama admonished his colleagues that “If a family or a nation is sober, nature in its normal course will cause them to rise to a higher civilization. If a family or a nation, on the other hand, is debauched by liquor, it must decline and ultimately perish.” Three years later, the Sixty-Fifth Congress, of which Hobson was not a member, proposed the Eighteenth Amendment for ratification by the States. Section 1 provided:

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

On January 8, 1918, Mississippi became the first state to ratify national Prohibition – scarcely a year later the requisite three fourths of the states followed suit, and ratification of the Eighteenth Amendment was completed on January 16, 1919. Another nine states would ratify the Eighteenth Amendment during the next few years, Rhode Island being the only state to reject it.

On October 28, 1919, Congress passed the National Prohibition Act. Better known as the “Volstead Act” after its principal House sponsor Andrew Volstead (R-MN), it applied generally to any “intoxicating liquor” with at least 0.5% alcohol by volume and which was “fit for use for beverage purposes.” The Volstead Act specifically named “beer, ale, [and] porter” among the liquors prohibited. Exceptions were made for wines intended “for sacramental purposes, or like religious rites,” and for liquor used for medicinal purposes when a licensed physician determined that the liquor “is necessary and will afford relief to [the patient] from some known ailment.”

Enforcement of the Prohibition laws proved difficult at best, a fiasco at worst. The Schaffer Library of Drug Policy, relying upon government records from the 1920s, reports that: (i) federal authorities seized an average of more than 4.6 million gallons (roughly 147,000 U.S. barrels) of illegal beer annually, not counting the outlier year of 1926 in which more than 14.2 million gallons (some 450,000 U.S. barrels) were seized; (ii) an average of nearly 62,000 people were arrested annually between 1923 and 1929, resulting in more than 42,600 convictions each year; and (iii) over 45,000 vehicles were seized during the decade, along with more than 1,300 boats. These “successes” were not without their cost, however. A total of 71 federal agents were killed enforcing the Prohibition laws during the 1920s, and another 445 were injured. And of course, Prohibition gave rise to a vast (and often violent) criminal underground of “speak-easy” saloons and bootleggers such as Alfonse Capone.

The Fall of Prohibition and the Rise of Modern Regulation

National Prohibition was on the decline from the day it began. Advocating repeal of the Eighteenth Amendment in a June 1932 personal letter, which was later published in the New York Times, former Prohibition advocate John D. Rockefeller, Jr. cited the “colossal scale” of criminal activity and general disrespect for the law which Prohibition had engendered.[2]

On March 23, 1933, President Roosevelt signed the Cullen-Harrison Act, which amended the Prohibition laws to allow production and sale of “3.2 beer” (3.2% by weight, approximately 4% by volume), and once done he remarked: “I think this would be a good time for a beer.” Later that year, on December 5, 1933, Utah became the crucial 36th state to ratify the Twenty-First Amendment formally repealing Prohibition.[3] Section 2 of the Twenty-First Amendment provided that “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” In other words, regulation of liquors, beer and the brewing industry were to be left largely to state law. The federal government, under the Alcohol Administration Act and the Internal Revenue Code, concerns itself primarily with taxation.

Today, the Alcohol and Tobacco Tax and Trade Bureau of the Department of the Treasury administers the federal laws taxing the production and sale of beer in the United States. Under federal law, “beer” is defined to mean “beer, ale, porter, stout, and other similar fermented beverages (including sake or similar products) of any name or description containing one-half of 1 percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute therefor.” The states, however, have defined “beer” in a multitude of various ways.

The California Beverage Control Act, for example, defines “beer” to mean “any alcoholic beverage obtained by the fermentation of any infusion or decoction of barley, malt, hops, or other similar product, or any combination thereof in water, and includes ale, porter, brown, stout, lager beer, small beer, and strong beer but does not include sake, known as Japanese rice wine.” New York’s Alcoholic Beverage Control Laws define it simply as “any fermented beverages of any name or description manufactured from malt, wholly or in part, or from any substitute therefor.”

Montana law defines “beer” as “(i) a malt beverage containing not more than 8.75% of alcohol by volume; or (ii) an alcoholic beverage containing not more than 14% alcohol by volume: (A) that is made by the alcoholic fermentation of an infusion or decoction, or a combination of both, in potable brewing water, of malted cereal grain; and (B) in which the sugars used for fermentation of the alcoholic beverage are at least 75% derived from malted cereal grain measured as a percentage of the total dry weight of the fermentable ingredients.” New Jersey law does not specifically define “beer,” but rather includes it among the more generic “alcoholic beverages”: “Any fluid or solid capable of being converted into a fluid, suitable for human consumption, and having an alcohol content of more than one-half of one per centum (1/2 of 1%) by volume, including alcohol, beer, lager beer, ale, porter, naturally fermented wine, treated wine, blended wine, fortified wine, sparkling wine, distilled liquors, blended distilled liquors and any brewed, fermented or distilled liquors fir for use for beverage purposes or any mixture of the same, and fruit juices.”

Operating a commercial brewery or brew-pub today requires compliance with what can seem a labyrinth of complementary federal, state, and local laws.[4] Reporting on the weights of raw materials used and the barrels of beer brewed for federal (and state) tax purposes, satisfying the requirements of state licensing and permitting laws, even locating your operations in accordance with local zoning ordinances – the modern brewer must ensure compliance with all of these.

It’s enough to make one want a beer.

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Selected Sources

100 Years of Brewing: A Complete History of the Progress made in the Art, Science and Industry of Brewing in the World, particularly during the Nineteenth Century, (H.S. Risch & Co. 1903) (Arno Press reprint 1974)

21 Questions About Opening a Brewery in the United States, Anda and Brad Lincoln (Dark Train 2009)

FDR, Jean Edward Smith (Random House 2008)

Last Call: The Rise and Fall of Prohibition, Daniel Okrent (Scribner/Simon & Schuster 2010)

Radical Brewing: Recipes, Tales & World-Altering Meditations in a Glass, Randy Mosher (Brewers Pub. 2004)

Schaffer Library of Drug Policy, available at  http://druglibrary.net

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, Noah Feldman (Hachette Book Group 2010)

 



[1] Nor were their views absolute. Washington, as commanding officer of the young American armies, saw to it that his troops received a daily ration of whiskey as “the benefits arising from moderate use of strong Liquor have been experienced in all Armies, and are not to be disputed.” Both he and Jefferson are reported to have dabbled in the home-production of whiskey, and Madison was known to drink a full pint of whiskey every day.

[2] Indeed, flouting the Prohibition laws was common even among the highest government officials. On March 8, 1933, future Supreme Court Justice Felix Frankfurter and retired Justice Oliver Wendell Holmes toasted with “a few glasses each of Prohibition-era champagne” at a luncheon. President Franklin D. Roosevelt reputedly “enjoyed a drink as much as anyone. He paid no attention to Prohibition and never believed in it for an instant.”

[3] While Utah is widely considered to have been the state to make ratification of the Twenty-First Amendment complete, both Ohio and Pennsylvania also ratified the Amendment on that same date.

[4] Some states also regulate home-brewing. New Jersey, for example, directs that “Malt alcoholic beverages and wine for personal or household use or consumption may be manufactured only under the provisions of a special permit” issued by the Division of Alcoholic Beverage Control. As a practical reality, however, the regulation goes essentially unenforced.