Texas, like many states, has a patchwork of complicated, and often inconsistent, alcohol regulatory laws. A few years ago, Texas craft breweries were authorized to sell products to visitors for on-premises consumption. So, if a visitor to a craft brewery in Texas wants to enjoy a pint in a taproom, the brewery can sell it to that visitor provided the pint is consumed on the brewery premises.

Texas breweries, however, cannot sell their products to visitors for off-site consumption. Other alcohol manufacturers in Texas are permitted to sell products to customers for off-site consumption and this inconsistency is the basis of a recent lawsuit that was filed by Deep Ellum Brewing Company.

On September 14, Deep Ellum filed a lawsuit against the Texas Alcohol and Beverage Commission claiming the alcohol sales law unconstitutionally discriminates against certain breweries. Specifically, Deep Ellum argues that Texas impermissibly and unconstitutionally creates two classes of alcoholic beverage producers: those that can sell their product on-premises for off-premises consumption and those that cannot do so.

Deep Ellum offers two principal arguments for why certain sections of the Texas Alcoholic Beverage Code are unconstitutional under the Fourteenth Amendment of the United States Constitution.

First, Deep Ellum argues that the regulatory laws violate the Equal Protection Clause of the Fourteenth Amendment, which provides no State shall deny to any person the equal protection of its laws. The Equal Protection Clause requires the government to treat similarly situated person the same, or precludes it from treating one set of persons differently than others who are similarly situated.

Deep Ellum contends the Texas Alcoholic Beverage Code precludes it from selling its products on-site for off-site consumption and such preclusion violates the Equal Protection Clause because it treats breweries different than other alcohol manufacturers.

Next, Deep Ellum argues that the Texas Alcoholic Beverage Code violates its substantive due process rights under the Fourteenth Amendment. Substantive due process protects the right to pursue legitimate occupations, free from unreasonable government interference, subject only to regulations that are rationally related to a legitimate government purpose.

Deep Ellum maintains the regulatory statutes denying it the right to sell its products on-site for off-site consumption, while allowing other alcohol manufacturers to do so, creates an arbitrary distinction that is unreasonable and has no relationship, rational or otherwise, to a valid government interest.

In a statement issued by Deep Ellum on its website, the company said: “Texas allows every other alcoholic beverage manufacturer to do just that, wineries, distilleries and even brewpubs are allowed to sell their products directly to the end consumer for off-premises consumption. Microbreweries cannot… How is this prohibition against microbreweries protecting the welfare, health, peace, temperance or safety of the people of Texas? Long story short, it isn’t.”

It will be interesting to see how this case unfolds and whether the judge believes the Texas Alcoholic Beverage Code violates the Fourteenth Amendment to the United States Constitution. It will also be interesting to see whether breweries in other states that have similarly prohibitive laws file suit making analogous constitutional arguments.