Beer Shipping Dispute Pits Commerce Clause Against 21st Amendment

Judge Says More Evidence Needed Before Ruling

BALTIMORE — A federal lawsuit in Maryland could change how residents get their favorite beers. The case centers on whether breweries outside the state should be allowed to ship directly to Maryland customers.

On Aug. 4, U.S. District Court Judge Richard D. Bennett declined to issue a summary judgment, which would have resolved the case quickly. Instead, he ordered a bench trial, saying more evidence is needed before deciding whether the state’s beer shipping law is constitutional.

Plaintiff Challenges Beer Delivery Limits

The lawsuit was filed in July 2023 by Baltimore County resident and craft beer enthusiast Douglas Furlong. He is joined by two breweries: Vortex Brewing Company of Pennsylvania and Varietal Beer Company of Washington.

The case names Maryland Attorney General Anthony Brown and Jeffrey A. Kelly, head of the Maryland Alcohol, Tobacco and Cannabis Commission, as defendants.

Furlong argues that Maryland’s current shipping law blocks him from buying out-of-state beers that are otherwise unavailable locally. His lawsuit says the law violates the U.S. Constitution because it bans out-of-state direct shipping and forces breweries to use their own employees for deliveries instead of services like the U.S. Postal Service or FedEx.

Law Dates Back to Pandemic Rules

The law in question stems from a 2020 executive order signed by then-Gov. Larry Hogan during the COVID-19 pandemic. That order allowed Maryland breweries to ship beer directly to consumers at home.

The order was later written into law as the Direct Shipping Act of 2021. Lawmakers amended it again three years later, but its main effect remains: only in-state breweries can ship directly to Maryland residents.

Judge Bennett noted that testimony given to lawmakers showed the act was partly designed to meet growing demand for home beer delivery.

Constitutional Questions Raised

At the center of the case is the conflict between two constitutional provisions. The Commerce Clause gives Congress power over interstate trade, while the 21st Amendment lets states regulate alcohol sales within their borders.

“Specifically, this case triggers the interplay between two distinct provisions of the U.S. Constitution,” Bennett wrote in a 26-page opinion.

Bennett said the evidence so far has been too limited, pointing out that only eight exhibits were submitted, compared with more than 70 in similar cases. He said a trial would allow him to examine whether Maryland’s law protects public health or simply favors in-state businesses.

The judge wrote that while states have broad authority under the 21st Amendment, the goal “was not to give states a free hand to restrict the importation of alcohol for purely protectionist purposes.”

What Comes Next

Bennett said he will need to compare Maryland’s law with those in other states and review whether officials considered alternatives for ensuring public safety.

The upcoming trial could determine whether Maryland residents gain access to direct shipments from breweries across the country — or whether the state can continue limiting that privilege to its own brewers.