US court strikes down 158-year home distilling ban
A US appeals court has declared the 158-year ban on home distilling unconstitutional, ruling that the government cannot forbid it to protect tax revenue.
On 10 April, the US Court of Appeals for the Fifth Circuit ruled in favour of the Hobby Distillers Association (HDA) and its three plaintiffs, ruling that the government’s ban on distilling at home or near a residence violates the Constitution’s Taxation Clause and Necessary and Proper Clause.
The ruling concluded that the US Department of Justice (DOJ) and the Alcohol and Tobacco Tax and Trade Bureau (TTB) can not place a ban on home distilling under the guise of tax administration.
The issue stems back to a law from 1868 when Congress created strict rules around where spirits could be produced over concerns about tax evasion.
Under 26 U.S.C. § 5178(a)(1)(B), spirits production is banned at “any dwelling house” or “any shed, yard, or enclosure” that is connected to a private home. Violations can trigger up to US$10,000 in fines and five years in prison.
However, the plaintiffs in the case are hobby distillers who experiment with making spirits at home for personal use, rather than commercial use. Some of them already made beer, wine and cider at home (which is permitted under US law) and wanted to expand into spirits.
Scott McNutt, who is one of the plaintiffs, received a TTB warning letter in 2014 cautioning him that “federal law provides no exemptions” for spirits production for personal use and that unlawful distillation could result in criminal prosecution.
In November 2023, the plaintiffs’ attorney called the TTB to ask whether a permit for home distilling was possible, but the agency would not consider it because it was deemed “against the law”.
Shortly after this, the plaintiffs and the HDA sued the TTB and the DOJ, which are both part of the US government, seeking injunctive relief.
The district court originally dismissed several plaintiffs for lack of standing. But the Fifth Circuit reversed that portion, concluding that all four individual plaintiffs had standing because they credibly intended to distil spirits at or near their homes and faced a realistic threat of prosecution.
The government argued that home distilling was banned to prevent tax evasion, because hidden stills could conceal proof gallons or avoid tax liability entirely. The Fifth Circuit rejected this reasoning, calling the statute “anti-revenue” because it eliminates the possibility of production entirely.
The Fifth Circuit warned that if Congress could ban activity simply because it might lead to tax avoidance, there would be no limiting principle. As an example, the court said that this logic would mean that home-based businesses or remote work could face criminal charges.
The ruling also mentions that the government has not challenged the court’s analysis during the appeal process. As such, it will not be addressed further and has been forfeited on appeal.
The HDA stated after the decision that individuals must still seek a federal permit from the TTB to make spirits at home, but that this ruling no longer bans distilling based on location (home, garage or garden).
It added: “This is a landmark step – but not the finish line. The Hobby Distillers Association will continue working to bring hobby distilling out of the shadows and secure the same legal standing that home brewers and winemakers enjoy – both federally and in every state.”
The Spirits Business has approached the TTB for comment.
Related news
UK gov uses tags to detect criminal drinking
