The Hobby Distiller’s Association (“HDA”) scored a major victory last month, through the tireless efforts of the talented attorneys at The Buckeye Institute. The Court of Appeals upheld the District Court order permanently enjoining enforcement of 26 USC §§ 5178 (a)(1)(B) and 5601 (which prohibit and criminalize home distilling), against members of the HDA. McNutt v. U.S. Dep’t of Justice, No. 24-10760 (5th Cir. Apr. 10, 2026)
The Court of Appeals held that the tax and spend clause under the U.S. Constitution, see U.S. Const. art. I, § 8, cl. 1, only gives U.S. congress the authority to raise revenue. Prohibition of a legal, licensed and regulated activity at home by the federal government “is not a proper means of exercising the tax power”. The Court also rejected the federal government’s argument that it had implied power to prohibit home distilling under the necessary and proper clause under the U.S. Constitution, see, U.S. Const. art. I, § 8, c. 18, because prohibition against home distilling had no “real or substantial” relationship to Congress’ taxing power, and the ban improperly invaded reserved police and regulatory powers of the states, see, i.e., U.S. Const. amend. X
The Court ruling has a couple of important caveats. First, only members of HDA are eligible to obtain a TTB permit. Applicants must provide a copy of their certificate of HDA membership. Second, permittees must still comply with other federal, state and local laws. This includes but is not limited to obtaining a Distiller’s Permit from the Texas Alcoholic Beverage Commission (“TABC”), paying federal and state excise taxes, and complying with local zoning, public, health, and safety regulations.
The holder of a TTB distiller permit must obtain a Distiller’s permit from TABC in order to distill spirits at home. This is because there is no exception to home production of distilled spirits, unlike wine and malt beverages, see Tex. Alco. Bev. Code § 109.21. Location must be certified as wet by local political subdivision(s). (Texas State Representative Giovanni Capriglione sponsored a bill to expand Tex. Alco. Bev. Code 109.21 to include distilled spirits during the 2025-2026 legislative session, but it died in the Senate without becoming law. We wouldn’t be surprised if some version of this bill is filed during the 2027-2028 legislative session)
