How to Evaluate Proposed Alcohol Laws

The four-step process is essential and here are three examples of that process

The temptation is to immediately take a position for or against a proposed law by way of our immediate emotional response. When we take this path to determination, too often our position is vulnerable to criticism based in logic and reason. This is particularly true with alcohol-related laws.

There is a better way to evaluate laws and determine our position on a proposed law, be it alcohol-related or not:

1. Identify the problem the law is attempting to solve and the extent of the problem.

2. Determine the extent to which the law will address or mitigate the problem

3. Determine the population the law will adversely impact and the degree of impact.

4. Make a value judgment.

These are the four steps necessary to undertake to evaluate whether a proposed new law is justified. It’s a complex equation that often defies simple quantification. For example, when attempting to quantify the impact of a proposed law, we often must estimate the degree of the impact. If a new tax is involved, it is easier to determine the impact by simply estimating the revenue that will be generated. On the other hand, when the law is attempting to dissuade certain behavior, it becomes a more nebulous calculation.

Consider the problem of automobile accidents and the harm they cause. In 2021, 43,000 people died as a result of automobile accidents. This is more than 10X the number of people who died on 9/11 and after that disaster, numerous laws were passed in response.

So, one change in the law aimed at decreasing the number of auto accidents might involve lowering speed limits. For example, we might propose that 15mph be the speed limit in city and non-highway travel, while 30mph would be the speed limit on the highway. There is no question at all that this change would reduce fatalities. But if you review the 4-step process for evaluating a proposed law, we still need to evaluate the population the proposed law will impact and the degree of that impact. Economists will tell you that reducing the speed limit so drastically will significantly negatively impact the economy by seriously slowing the movement of goods and people. We are talking hundreds of billions of dollars in negative economic impact.

Now comes step 4: the value judgment. What’s more important? Thousands of human lives or the health of the economy?

Three proposed, alcohol-related laws in three different states highlight the complexity of this necessary set of calculations. I want to look at them:

TENNESSEE
The problem: Drunk Driving fatalities and injuries
The Proposed Law: ban sales of refrigerated alcohol at convenience stores and retail establishments

Tennessee was ranked by Forbes as the 12th worst state in the country for Drunk Driving with its 5.5 drivers in 100,000 involved in fatal car accidents. The proposed law seeks to cut this rate down by disincentivizing drivers from drinking by making the potential drink less palatable (warm beer and wine).

Let’s do the evaluation. The problem is that driving while drunk in Tennessee is more dangerous than in 75% of the other states. In 2019, there were 289 alcohol-related fatalities. There is no estimate of how many of those fatalities would be mitigated by not selling chilled beer and wine. But we can assume it would dissuade some folks from drinking and driving. However, it’s also rational to assume that if a person is so in need of drinking a chilled beer that they are willing to pop it open in the car, it is unlikely that a lowered beer temperature is going to be effective in dissuading this group. It’s easy enough to identify the group that is most impacted by this legislation: folks who sell chilled beer and wine. We can assume by the ubiquitous nature of coolers in retail stores that chilled beer and wine is economically important to the thousands of beer and wine retailers in Tennessee. The proposed law will also impact consumers, who will waste a bit of time chilling their beverages before consuming them. In my view, this inconvenience is small. Moreover, I’m not convinced considerable sales will be lost by outlawing the sale of chilled beer and wine. Now comes the value judgment. What’s more important, slightly reducing the alcohol-related death rate and saving human life or continuing to give retailers the freedom to offer a product that is in demand (chilled beer and wine) and allow consumers to have the convenience of not having to chill the beer and wine? Personally, I’d vote no.

NEW YORK
The Problem: consumers are forced to make an additional stop at the wine store to buy their wine, rather than pick it up at the grocery store when they shop because wine sales in grocery stores are illegal in the state.
The Proposed Law: Allow stores where 65% of revenue is derived from food sales and where beer is already sold to tell wine.

New York State has forever restricted wine sales to liquor stores, forbidding the sale of wine in grocery stores where it is allowed in most states. This causes consumers to have to make an additional stop if they want to pick up wine. This is inconvenient, and it favors one type of retailer over another without any public safety justification.

Let’s do the evaluation. Because more people buy groceries and food than they do wine, they more commonly go to a grocery store where, if it were legal, the consumer could easily pick up that bottle of Josh—if that’s what they are into. If the bill to allow wine to be sold in grocery stores passes it will entirely mitigate the inconvenience problem and it will no longer be a matter of policy to protect one type of alcohol seller from competition. Unquestionably this will harm liquor stores to one extent or another. Some claim that upwards of 30% of liquor stores will close, but this claim is made by those who oppose the law. Additionally, in states where wine may be sold in grocery stores, liquor stores have survived and in many cases are thriving. Now comes the value judgment: What’s more important, continuing to protect the economic interests of liquor stores or providing convenience to consumers who shop for wine? Personally, I’d vote yes.


WASHINGTON STATE
The Problem: Consumers in Washington State are barred from receiving wine shipments from out-of-state wine retailers. This results in 100s of 1,000s of wines being unavailable to Washington State Consumers.
The Proposed Law: Allow out-of-state retailers to sell and ship wine to Washington State consumers and regulate those shipments and retailers in the same way out-of-state wineries and their shipments are regulated.

Washington State currently allows out-of-state wineries, in-state wineries, and in-state retailers to ship wine directly to consumers, but they bar out-of-state retailers from doing the same. It is argued this is appropriate because it prevents minors from accessing alcohol. However, because only retailers sell imported wine in the United States, it means that hundreds of thousands of imported wines, small-production wines, rare wines, and collectible wines are off-limits to Washington State consumers.

Let’s do the evaluation. Because Washington State consumers are barred from obtaining wine by shipment from out-of-state retailers, they do not have access to 100s of 1,000s of wines they generally cannot find locally. Additionally, the discriminatory character of the law makes it constitutionally suspect. The passage of the bill allowing shipments of wine will entirely mitigate the problem Washington State consumers face and eliminate any constitutional problems. No one has claimed that any group will be adversely impacted by this law, with the exception of minors who opponents say, are likely to access alcohol more readily. However, no evidence has been presented that demonstrates minors are seeking to obtain wine via direct shipments and if they wanted to, they already have wineries in and out of the state as well as in-state retailers they might look to for wine. Now comes the value judgment: Is it more important to address the small chance of minors obtaining wine via shipment from out-of-state retailers or to give Washington adult consumers greater choice in the wine products to which they have access? Personally, I’d support the bill (Disclosure: I’ve lobbied in support of this bill.)

The thing to notice is that with nearly any law, there is a group that is negatively impacted to one degree or another. It doesn’t matter what kind of law we are talking about. What follows from this law of politics and the other thing of importance to note is that in every case and with every proposed law, there is a value judgment that informs how we (and lawmakers) view the proposed law. Finally, it’s notable that this value judgment cannot be made without knowing the extent of the problem, and who will be negatively impacted, and to what extent by addressing the problem with the proposed solution.

It is often very difficult to systematically go through this four-step process for evaluating proposed legislation. It’s much easier to read our emotional response to the proposed law and go with that. However, I can’t think of a worse way to evaluate legislation than by assessing our emotional response. It’s true that in the end, we must use our moral and ethical values in determining our disposition toward the proposed law. But this is entirely different than going with our emotions.