A federal court in Texas struck down the federal ban on home distilling. Does that mean Arkansas's ban on home stills is also unenforceable?
Plain-English summary
In 2024, a federal trial court in Texas (Hobby Distillers Association v. Alcohol & Tobacco Tax & Trade Bureau) held that the federal statute banning at-home distilling was unconstitutional. The court reasoned that Congress's taxing power and Commerce Clause power didn't reach far enough to justify the federal ban, and it permanently enjoined the federal government from enforcing the ban against the plaintiffs (the Hobby Distillers Association and its members). Arkansas State Representative Zachary Gramlich asked the AG whether that ruling means home distilling is now legal in Arkansas too.
Attorney General Tim Griffin answered no. Two reasons.
First, the federal court's ruling only binds parties within its jurisdiction (the Northern District of Texas). The Hobby Distillers Association's individual plaintiffs, the Association, and the Association's members are protected from federal enforcement. Anyone outside that group, in Arkansas or anywhere else, is not. The ruling has been appealed to the Fifth Circuit; even if it is upheld, it would only bind cases in that circuit.
Second, and more importantly, the case is about federal power, not state power. Arkansas regulates stills and distilling under its own statutes, drawing on the Twenty-First Amendment (which gives states broad authority over alcohol regulation in their borders) and on the state's general police powers. Those bases of authority were not at issue in Hobby Distillers, and the federal court did not say anything about them.
Under Arkansas law, having a still or its parts without an Alcoholic Beverage Control permit is a Class D felony, and the still and its parts can be seized. That law continues in force regardless of what happened to the federal statute in Texas. The General Assembly is free to amend Arkansas's law to allow more home distilling if it wants to, but that is a legislative choice, not a constitutional requirement.
What this means for you
If you want to distill alcohol at home in Arkansas
Don't rely on Hobby Distillers as legal cover. The Texas ruling does not protect you in Arkansas, even if you join the Hobby Distillers Association. Arkansas's ban on illicit stills (A.C.A. § 3-3-402) is a state law based on state authority, and the federal ruling has no effect on it.
Owning, possessing, or transporting any "illicit still" or its parts is a Class D felony in Arkansas, punishable by a fine up to $10,000 and imprisonment up to six years. Equipment used in transporting illicit alcohol or in the unlawful manufacture of alcohol can be seized.
If you want to legally distill, you need an ABC permit under A.C.A. § 3-4-602. That's a license, not a constitutional right.
If you are an Arkansas legislator
The ruling does not require you to do anything. But the AG flags that the General Assembly does have authority to amend the still and permit statutes if it wants to expand the legal scope of home distilling. That's a policy choice, not a constitutional command.
If you are a craft distiller or commercial alcohol producer
The status quo continues: licenses, permits, and ABC compliance. The federal ruling does not relax any of the state-level requirements.
If you are a federal officer or ATTB inspector
Note that the Hobby Distillers ruling is only binding on you with respect to the parties in that case (the Association and its members), and only within the Northern District of Texas. The ruling has been appealed to the Fifth Circuit and stayed for some period for emergency relief. As to non-parties in non-Fifth-Circuit jurisdictions, the federal statute is still being applied.
If you are a law-enforcement officer in Arkansas
Continue applying state law. A.C.A. § 3-3-402 makes possession of an illicit still or any "substantial part" of one a felony. The Hobby Distillers ruling has no effect on your authority under state law.
Common questions
Q: What did Hobby Distillers actually say?
A: A federal trial court in the Northern District of Texas held that 26 U.S.C. § 5178(a)(1)(B), which prohibits distilling alcohol "in any dwelling house, in any shed, yard... [or] on board any vessel," is unconstitutional. The court held that neither the federal taxing power nor the Necessary and Proper Clause nor the Commerce Clause authorizes the ban as written.
Q: Why doesn't that affect Arkansas?
A: Two reasons. (1) Lower federal courts' rulings only bind parties within their jurisdiction. The Northern District of Texas does not include Arkansas. (2) The federal ruling concerns federal authority, not state authority. Arkansas regulates alcohol through state police powers and the Twenty-First Amendment, which were not at issue in the case.
Q: What's the Twenty-First Amendment?
A: The amendment that repealed Prohibition. It also explicitly authorizes states to ban or regulate alcohol within their borders. The Supreme Court has consistently held that this gives states "significant control" over how alcohol is sold and distributed.
Q: What are "police powers"?
A: An older term for a state's general regulatory authority to protect public health, safety, and welfare. Unlike federal authority (which has to be traced to a specific constitutional grant), state police power is general and inherent.
Q: What is an "illicit still" under Arkansas law?
A: Anything "designed for the unlawful manufacture of intoxicating liquor," including parts "commonly used... or intended to be used" in distilling spirits, wine, or malt liquor (A.C.A. § 3-3-401(a)). Even if the still is incomplete or has never been used, it counts (Philyaw v. State, 1957).
Q: What's the penalty for owning an illicit still?
A: Class D felony in Arkansas. Fine up to $10,000 (A.C.A. § 5-4-201), imprisonment up to six years (A.C.A. § 5-4-401), plus seizure of the equipment and any vehicle or vessel used to transport illicit alcohol or stills.
Q: Could the Arkansas legislature legalize home distilling?
A: Yes. The AG explicitly notes that the General Assembly has authority to amend the permit and illicit-still statutes to expand permitted activity. Whether to do so is a policy choice.
Background and statutory framework
The federal government's authority to regulate alcohol comes from specific constitutional grants (the taxing power, the Commerce Clause, and the Twenty-First Amendment). When Hobby Distillers held that the federal in-home-distilling ban exceeded those grants, that holding was about federal authority, not state authority.
State authority to regulate alcohol has two pillars. First, the Twenty-First Amendment of the U.S. Constitution explicitly preserves state authority to regulate alcohol within state borders. The Supreme Court has repeatedly affirmed (Midcal Aluminum, 44 Liquormart, Tennessee Wine & Spirits Retailers Ass'n v. Thomas) that this gives states substantial control. Second, states have general police powers, an older common-law concept that authorizes regulation for public health, safety, and welfare. The Tenth Amendment confirms that powers not delegated to the federal government are reserved to the states.
Arkansas exercises both. The state requires an ABC permit to distill (A.C.A. § 3-4-602) and criminalizes operation of an illicit still (A.C.A. § 3-3-402). The illicit-still statute reaches not just complete operating stills but also their substantial parts (A.C.A. § 3-3-401(a) defines "illicit still" broadly). Arkansas case law (Philyaw v. State) has held that the parts are contraband even if the still has never been used to produce alcohol. The state has post-conviction seizure and destruction authority (A.C.A. §§ 3-3-403, -404).
Citations and references
Statutes and constitutional provisions:
- A.C.A. § 3-3-218(a) (license is not a constitutional right)
- A.C.A. § 3-3-401(a) (illicit-still definition)
- A.C.A. § 3-3-402 (prohibition; Class D felony)
- A.C.A. § 3-3-403 (seizure)
- A.C.A. § 3-3-404 (destruction or sale after conviction)
- A.C.A. § 3-4-602 (distilling permits)
- A.C.A. § 5-4-201 (fines)
- A.C.A. § 5-4-401 (imprisonment)
- U.S. Const. amend. X (Tenth Amendment)
- U.S. Const. amend. XXI (Twenty-First Amendment)
- 26 U.S.C. § 5178(a)(1)(B) (federal location restriction)
- 26 U.S.C. § 5601(a)(6) (federal penalties)
Cases:
- Hobby Distillers Ass'n v. Alcohol & Tobacco Tax & Trade Bureau, 740 F. Supp. 3d 509 (N.D. Tex. 2024)
- Philyaw v. State, 228 Ark. 71, 305 S.W.2d 851 (1957)
- Brennan v. White Cnty., 2019 Ark. App. 146, 573 S.W.3d 577 (2019)
- McCulloch v. Maryland, 17 U.S. 316 (1819)
- Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)
- California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980)
- 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)
- Tennessee Wine & Spirits Retailers Ass'n v. Thomas, 588 U.S. 504 (2019)
- Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W.2d 719 (1941)
- Hogue v. Hous. Auth. of N. Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-042
August 8, 2025
The Honorable Zachary Gramlich
State Representative
2020 South T Street
Fort Smith, Arkansas 72901
Dear Representative Gramlich:
I am writing in response to your request for my opinion on whether a recent Northern District of Texas decision in Hobby Distillers Association v. Alcohol & Tobacco Tax & Trade Bureau, which generally held that a federal ban on in-home stills was unconstitutional, "is effective and applicable" to the Arkansas statutes concerning stills and their parts. You also ask "if legislation on this topic could help alleviate the burden" on citizens.
RESPONSE
While the Hobby Distillers Association v. Alcohol & Tobacco Tax & Trade Bureau decision declared federal provisions regarding distilling spirits unconstitutional and permanently enjoined the federal government from enforcing that law against plaintiffs, it does not impact Arkansas law concerning stills and their parts.
DISCUSSION
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Northern District of Texas. In Hobby Distillers Association v. Alcohol & Tobacco Tax & Trade Bureau, the Northern District of Texas (a federal trial court) held that the federal statute prohibiting someone from distilling alcohol in certain locations, including "in any dwelling house, in any shed, yard... [or] on board any vessel," is unconstitutional. The government argued that such a ban was permissible under both the federal government's taxing powers and its Commerce Clause powers. But the trial court disagreed, holding: "neither Congress's enumerated taxing power nor its incidental powers [under the Necessary and Proper Clause or the Commerce Clause] sustain the provisions as enacted." The court also permanently enjoined the federal government from enforcing the ban against the individual plaintiff, the Hobby Distillers Association, and the Association's members.
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Arkansas law. Under Arkansas law, people who want to have a still or its parts need an Alcoholic Beverage Control permit. Otherwise, a still itself and its parts, regardless of whether it is "set up or complete," or even used to produce alcohol, is contraband and prohibited in this State: one cannot "own, possess, or knowingly transport any illicit still, still worm, or any apparatus or any substantial part of any illicit still."
The phrase "illicit still" is defined as something "designed for the unlawful manufacture of intoxicating liquor," including parts "commonly used... or intended to be used" in distilling or manufacturing "spiritous, vinous, or malt liquors."
Unlawfully owning, possessing, or transporting a still or its parts is a crime. The government may also seize the still and its parts, and may seize property "used in the transportation or storage of any illicitly distilled" alcohol or "any illicit still, still worm, or other apparatus designed for the unlawful manufacture" of alcohol.
- Authority to regulate alcohol—federal versus state. The federal government may regulate an area like alcohol only if it falls under a power expressly granted to the government by the U.S. Constitution. In contrast, States have general police powers and broader authority than the federal government to regulate alcohol.
First, the Twenty-First Amendment to the U.S. Constitution, which repealed nationwide alcohol prohibition, provides that "[t]he transportation or importation into any State... for delivery or use therein of intoxicating liquors, in violation of the laws thereof," is prohibited. Consequently, the Twenty-First Amendment gives States significant "control over whether to permit importation or sale of liquor and how to structure the liquor distribution system," subject to constitutional limitations.
Second, apart from the Twenty-First Amendment, a State may regulate alcoholic beverages under its police powers. The police power is the power inherent in state sovereignty and is not a grant derived from any constitution. It is the power to "establish and enforce all regulations reasonable and necessary to secure the health, safety[,] and general welfare of the community." Courts will review a State's exercise of its police powers to determine whether it is "rationally related to achieving any legitimate governmental objective under any reasonably conceivable fact situation," subject to constitutional limitations (like a State's regulations under the Twenty-First Amendment).
- Application. The ruling in Hobby Distillers does not impact state law for at least two independent reasons. First, the decision, which has been appealed to the Fifth Circuit Court of Appeals, is only binding on certain parties within the district court's jurisdiction, which does not include Arkansas. Second, at its core, Hobby Distillers is about the limits of the federal government, and not about the limits of a State, to regulate alcohol. No party in that case challenged a State's authority to regulate stills or still parts. So the decision says nothing about the validity of Arkansas's current alcohol law concerning stills and still parts. But it is within the General Assembly's authority to amend the current statutes concerning permits or licenses for distilling alcoholic beverages and concerning "illicit stills" to expand one's ability to possess, use, or own stills to manufacturer alcoholic beverages.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General