Monday, April 27, 2009

Is Bourbon Officially America’s Native Spirit?

I’m warning you right now, this is about as esoteric as it gets.

Part of what got me interested in writing about American whiskey 20 years ago was how much misinformation I found whenever I researched the subject. It was obvious that many writers simply repeated what they read without probing to determine how credible it was. I started to probe and kept finding out that many of the accepted facts are wrong.

It hasn’t been easy to correct the record. Even where I think certain facts are good they can be hard to verify. Also, some myths are more satisfying than the truth, and some tales benefit commercial interests, so they persist. In many cases, the oft-repeated facts aren’t so much wrong as they are not quite right. The differences can seem minor until you think about them.

It is still happening.

In 2007, the U.S. Senate declared September to be “Bourbon Heritage Month.” They did it again in 2008 and will, presumably, three-peat in 2009.

Congress did not make this declaration unbidden. Senator Jim Bunning of Kentucky introduced it at the behest of Beam Global, makers of Jim Beam Bourbon, working through the Distilled Spirits Council of the U.S., the industry trade group of which Beam Global is a prominent member.

Although the rest of the American Whiskey industry has yet to fully embrace Bourbon Heritage Month, most agree it is an okay idea. An official month gets a subject onto a lot of editorial calendars. It also motivates producers and retailers to promote their bourbons a little harder during that month. It might even inspire some non-bourbon drinkers to try a taste of bourbon out of respect, much as Cinco de Mayo sells a lot of tequila. It has the potential to extend the fall quarter, traditionally the key selling season for all distilled spirits, forward a month for bourbon.

In the typical form of such things, the resolution doesn’t just say, "the Senate designates September 2007 as National Bourbon Heritage Month." It takes about 300 words to get there.

Most of those words are devoted to statements supporting the resolution, each preceded by the word "whereas." The resolution has nine “whereas” statements.

I have an issue with the first.

"Whereas Congress declared bourbon as 'America's Native Spirit' in 1964, making it the only spirit distinctive to the United States."

While the sense of that statement is correct, it is not literally true, in that the three words contained within quotation marks do not appear in the 1964 resolutions introduced by Senator Thurston Morton and Representative John C. Watts, both of Kentucky. Many readers of the 2007 resolution will assume, because of the quotation marks, that those three words appear in the 1964 resolution. They do not.

Here, as quoted in the Regans’ The Book of Bourbon, is that 1964 resolution:

"Bourbon whiskey is a distinctive product of the United States and is unlike other types of alcoholic beverages, whether foreign or domestic; and whereas to be entitled to the designation 'Bourbon whiskey' the product must conform to the highest standards … and whereas Bourbon whiskey has achieved recognition and acceptance throughout the world as a distinctive product of the United States … it is the sense of Congress that the recognition of Bourbon whiskey as a distinctive product of the United States be brought to the attention of the appropriate agencies."

Although one could readily argue that the claim 'America’s Native Spirit' is supported by that language, the 2007 text quotes that phrase, and capitalizes it for good measure, as if it was bestowed as an official title. It was not.

Why didn’t the drafters of the 2007 resolution use an actual quote from the 1964 resolution? That short text repeats the phrase "distinctive product of the United States" three times, which is sort of like saying, "America’s Native Spirit," but not quite.

The 2007 drafters might refute this by saying that 'America’s Native Spirit' is capitalized and quoted not to indicate that it is a quotation, but to tag it as a common expression or catch-phrase, one which accurately encapsulates the meaning of the 1964 text.

Fair enough.

The claim "Bourbon is America’s Native Spirit" itself can be parsed a couple of different ways. The best way to interpret it is that bourbon whiskey is the only major type of distilled spirit that originated here, if just for purposes of that statement you consider Tennessee Whiskey to be bourbon too, since it is just as native. Gin, vodka, malt whiskey and even rye whiskey all originated in Europe. Tequila is Mexican. Of all the major drink types, only corn-based bourbon whiskey (and Tennessee whiskey) originated in what is now the United States.

Google “America’s Native Spirit” and up pops a web site all about bourbon. The web site is run by Beam Global.

I warned you. This is esoteric and nit-picky in the extreme. And complicated too. I want to make it clear that I am not accusing anyone of lying or obfuscating or even exaggerating.

So, did Congress or did it not declare bourbon whiskey to be "America’s Native Spirit"? Literally, no, it did not. The 1964 resolution passed by Congress does not contain those words. Whether or not the words it does contain express that same meaning is a different question.

At this point you are entitled to ask, "so what?" What is the difference between "America’s Native Spirit" and "a distinctive product of the United States"?

The difference is that while one phrase sounds good in press releases, the other one actually means something.

"America’s Native Spirit" is a vaguely patriotic, feel-good claim that Beam has captured as a web address, and while it only uses that web site to promote the bourbon category, Beam’s brands get in there too in subtle ways. Beam believes in doing well while it is doing good.

In contrast, the legal effect of the 1964 "distinctive product of the United States" declaration has been major, benefiting every bourbon producer equally. Because of it, the United States will not allow any product labeled as "bourbon" to be sold within its borders unless that product was made in the United States, and through treaties it has gotten many other important jurisdictions to enforce that rule on their soil too. Most of those treaties explicitly give Tennessee Whiskey the same protection. This is the significance of that 1964 resolution.

Similarly, you will often see it stated that the 1964 resolution created something called the Federal Standards of Identity for Bourbon Whiskey. This is also not quite true. The U.S. Government has rules defining bourbon, but they are contained within the Standards of Identity for Distilled Spirits (SIDS), which is part of the U.S. Code of Federal Regulations, Title 27, Part 5; "27 CFR 5" for short.

Again, it is a smallish point, but all of that stuff about "not exceeding 160[deg] proof" and "not less than 51 percent corn"? That stuff is not mentioned in the 1964 resolution. That’s all from SIDS, which has nothing to do with the 1964 resolution. The SIDS were first codified in 1935, not long after distilled spirits were made legal again following Prohibition, but they have their roots in the Pure Food and Drug Act of 1906 and the Bottled in Bond Act of 1897.

Several of the rules that are repeatedly cited to the mythical Federal Bourbon Standards are themselves mythical, such as the ones that say bourbon must be all-natural, that it cannot be colored or filtered, and that it must be distilled and aged in Kentucky.

In reality, “all-natural” is a reasonable conclusion one can draw from reading the SIDS, but it is not a standard itself. Coloring is prohibited by the real rules but filtering is not. Kentucky is nowhere mentioned, although there is a general requirement that any statement made about origin must be truthful.

The SIDS are essentially labeling rules. They don’t tell a producer what to make, they tell them what they have to do if they want to label their products with certain words, such as "straight bourbon whiskey." It is in the SIDS where the following statement appears: "the word 'bourbon' shall not be used to describe any whisky or whisky-based distilled spirits not produced in the United States."

That rule, and only that rule, is a consequence of the 1964 resolution.

Once, when I was in law school, I complained to a friend about how boring it was to read insurance policies. "If lawyers don’t read them," she replied, "who will?" Point taken. Maybe none of this matters, but at least now I feel better for getting it all out in the open.


Davin de Kergommeaux said...

"As America's only indigenous spirit, bourbon was recognized in 1964 by an act of Congress when it declared bourbon 'America's Native Spirit'."

Frankly Chuck, I see this as racist disrespect of America's real Native spirit - its indigenous people. I'm glad to learn Congress didn't actually make that declaration and I hope the press aren't going to repeat this tidy little appropriated sound bite.

Stephanus Maximus said...

I'm writing a paper on Bourbon post-prohibition and this myth is critical.

How were you able to find the exact wording of the resolution, I havn't had much luck with that.

More importantly, how did you find the SIDS from 1935? It looks like it has been updated since then. Either that or I misunderstand the date at the bottom of this:

I really don't have any legal background. Could you help?