America's Weak-Beer Wars

Most states have repealed their Prohibition-era '3.2 laws,' but they would do beer-drinkers and retailers a favor by clearing away their remaining alcohol-content restrictions.
August 12, 2019 AT 4:00 AM
(FlickrCC/Justin Kern)
By C. Jarrett Dieterle  |  Contributor
Director of commercial freedom policy at the R Street Institute

As any astute beer shopper can attest, alcohol retailers' shelves these days are loaded with a wide array of innovative craft brews. These beers are not just diverse in terms of style, but increasingly they are diverse because of their alcohol content. Several years ago, the alcohol levels in beer began rising as American drinkers became obsessed with high-octane brews. While this trend continues apace, there has also been a recent rise in lower-alcohol suds in taprooms as brewers experiment with new varieties.

The beneficiaries of these magnificently fermented experiments are consumers. Beer drinkers are becoming more sophisticated and thus demanding ever-newer releases and varieties of craft beer. The supply of the market, in other words, is rising to meet demand. Unfortunately, this dynamic market continues to be hampered by arbitrary state laws that limit the alcohol level permissible in beer. State lawmakers need to redouble their efforts to clear away these antiquated relics and let the beer flow.

The most infamous limitation on beer strength is what is known as a "3.2 law." These weak-beer mandates forbid outlets of one type or another from selling beer above 3.2 percent alcohol-by-weight. The laws harken back to 1933, when Congress passed the Cullen-Harrison Act about nine months before Prohibition was fully repealed. This legislation granted states the authority to permit the production and sale of 3.2 beer within their borders. While the Cullen-Harrison Act became irrelevant after Prohibition was scrapped, many state governments failed to repeal their 3.2 laws and left them on the books for decades.

Today, 3.2 laws are mostly a thing of the past. This is because a handful of state legislatures -- including long-time holdouts Kansas, Oklahoma and Utah -- have cleared away their versions in recent years. Minnesota is now the last state to limit convenience stores and groceries to 3.2 beer. (Unlike some former variants of 3.2 laws in other states, Minnesota permits licensed liquor stores to sell stronger beer).

This string of modern reforms may seem to beer-lovers like cause for celebration, but the reality is that America's weak-beer wars are far from over. Not only does Minnesota still have its law on the books, but many of the states that did repeal their 3.2 laws merely replaced them with slightly less onerous versions.

For instance, while Kansas overturned its 3.2 law this year, it ended up only raising the permissible alcohol level for beer to 6 percent alcohol-by-volume. Because of the different units of measure -- the original 3.2 laws used alcohol-by-weight, whereas Kansas' new limit uses alcohol-by-volume -- the reform is less than meets the eye: A 6 percent ABV beer is actually only a 4.7 percent ABW brew, a disappointingly modest increase. Oklahoma did slightly better in raising its threshold to 8.99 percent ABV (around 7 percent ABW) while Utah was only able to muster a raise to 5 percent ABV (around 4 percent ABW).

The larger issue is that these new limits are still completely arbitrary and especially unsuited to the modern craft-beer era. Imperial IPAs, to borrow one example, usually range anywhere from 7 to 12 percent ABV, while styles like barleywine can soar as high as 15 percent . On the other hand, Goses are almost always below 5.5 percent ABV.

Again, this variety is a good thing. A broad array of beer types with highly divergent alcohol levels is the sign of a healthy beer marketplace. There is no reason why government needs to regulate the alcohol content of beer -- after all, other alcoholic beverages such as wine and spirits have always featured higher levels of alcohol. Allowing retailers such as supermarkets, convenience stores and gas stations to sell stronger beer would not only help those businesses but also would benefit consumers by clearing away frustrating barriers to purchasing a preferred brew.

Legislators in Minnesota should quickly move to end their designation as the last remaining 3.2 state, while lawmakers elsewhere should prioritize removing all caps on beer strength. The recent wave of 3.2 law repeals is a good start, but we can do better than watered-down fixes.