It is evident that commerce would not be substantially free from state interference if the state could impose a license tax on the privilege of selling such goods after they had been brought in, for such a tax imposed specifically with reference to goods which are the subject of foreign or interstate commerce would be in effect a restriction upon such commerce. Accordingly it was held in an early case in the Supreme Court of the United States (Brown v. Maryland), that a license tax on the privilege of selling goods which had been imported, and on which duties had been paid in accordance with the provisions of the federal law as to importation, was invalid, and it was suggested that the privilege of importing secured under the law of the United States involved more than merely the right to bring into the state for use, and included also the right to sell without interference of state law so long as the goods had not become mingled with the general property within the jurisdiction of the state. More specifically it was suggested that the importer had the right to sell imported goods in the original packages in which they had been brought into the state, but that this immunity from the application of the state law did not extend to sales other than in the original packages or to sales by persons who had procured the goods in the state from the importer.

Subsequently in Leisy v. Hardin the same general rule was applied to goods such as intoxicating liquors brought into the state from another state, although there was no particular congressional regulation as to such matter and no duties had been paid to the United States for the privilege of bringing the goods into the state from another state; for, of course, Congress cannot impose duties on goods taken from one state into another. The so-called "Original Package" rule, therefore, means simply that in the absence of any regulation by Congress the state cannot tax or prohibit sales in the original package by the person who has brought the goods into the state from another state or from a foreign country, and that so long as such person continues to hold such goods for sale in the original package, the state cannot impose restrictions or burdens upon such sale.

This rule was the subject of particular discussion in connection with its application to the transportation and sale of intoxicating liquors in states where prohibitory liquor laws had been adopted; and the conclusion reached that state liquor laws did not apply to intoxicating liquors sold in the original packages by the person bringing them into the state was regarded by many as peculiarly unfortunate, because it opened the way for the constant violation of the policy of the state laws relating to the regulation of the liquor traffic. This objection has been obviated, so far as intoxicating liquors are concerned, by an act of Congress, known as the "Wilson Act," passed in 1890, providing that after intoxicating liquors are brought into any state they shall be subject to the regulations of the state law as to their sale; and since the passage of that act, sales in original packages are subject to the same restrictions as other sales of intoxicating liquors, for in the exercise of its power to regulate interstate and foreign commerce Congress may undoubtedly subject such commerce to state regulation so far as it may see fit (In re Rahrer). But the Wilson Act does not subject to state control the transportation of intoxicating liquors into a state; it relates only to their sale after they have reached their destination in the state (Rhodes v. Iowa). The "Original Package" rule still applies to sales of cigarettes, oleomargarine, and other articles which are subjects of general commerce, but which come within the scope of the police regulations in the various states; it does not apply, however, to articles such as unwholesome food, infected clothing, devices for counterfeiting, and like articles which have no lawful use and are not properly subjects of commerce. As to such articles, the power of the state to prohibit transportation and sale may be fully exercised (Kimmish v. Ball).