The 21st Amendment to the U. S. Constitution gave each state the right to regulate the sale of alcohol. This rule regulates Taverns and Class B retailers at retail. Nonintoxicating Beer retail on and off premises licenses exist due to the requirements in the W.Va. Constitution Art VI., §46. This rule also regulates brewer/importers and nonintoxicating beer distributors where there is some overlap under federal law, however, federal and state law look at the same and different items but at different degrees such as labeling, importing/exporting and product testing/requirements versus licensure of locations, production, alcohol percentage of nonintoxicating beer, distribution and transportation of nonintoxicating beer. There may be differing views of whether state and federal law are both more stringent or less stringent. There is federal tax on nonintoxicating beer and a state tax on nonintoxicating beer. There no state transportation permit for nonintoxicating beer but there is under federal law. Federal law also deals with Trade Practice issues (via Tied House laws and other areas) but this is viewed in conjunction with state law. The West Virginia Code and rules are meant to regulate and control the manufacture, sale, distribution, transportation, storage and consumption of nonintoxicating beer and at the same time provide protection of public safety, welfare, health, peace and good morals. Further the WVABCA has the state’s police powers to protect against the evils attendant to the unregulated, unlicensed and unlawful manufacture, sale, distribution, transportation, storage and consumption of nonintoxicating beer and further are intended to promote the temperate use and consumption of nonintoxicating beer. No review was made of agricultural requirements or requirements in other areas of federal law not directly related to beer regulation.
One area of the law where the state may be more stringent is with home brew beer. Federal law (See 27 CFR 1, Subchapter A, part 25, Subpart L §25.205, §25.206 and §25.207) permits up to 100 gallons per adult/per household of home beer to be brewed for personal (family) use and not for resale. WV law follows federal law by allowing home brew beer, however federal law permits home brewed beer competitions (with no federal guidelines) while state law does not permit these events because the home brewed beer is not tested for safety and alcohol content, and further is unlicensed and unregistered beer which cannot be safely served to the public. The WVABCA has worked with the Legislature on legislation attempting to address the issue but the safety issues versus the minimal expense of licensure have not been resolved.
Another issue is alternating proprietors at brewery premises (licensed). The WVABCA permits contract brewing but has no license to share a licensed premises between 2 brewers. Federal law permits this at 27 CFR 1, Subchapter A, Part 25, Subpart G, §25.81 and Industry Circular 2005-2 (August 12, 2005). Legislation would need to be added to change this requirement.