Frivolous Fungus Suit Endangers Kentucky Prosperity

Kentucky is abuzz about a lawsuit filed in federal court last week. It alleges that vapors emitted by aging whiskey carry a fungus that produces persistent black spots on homes and cars.

This is nothing new in Kentucky, or anywhere that distilled spirits are aged. The Louisville Courier-Journal has a well-reported story about it here.

The fungus is well known and generally regarded as harmless, if a bit of a nuisance. It can be removed with a little soap and water. Typically, all a distillery neighbor has to do is ask and the distillery will send a cleaning crew at no charge.

It is extremely doubtful that any complainant bought their house before the accused distillery was built. The fungus was likely on their house when they bought it. It's nothing new, although it may have gotten a little worse lately because more bourbon is being made. This appears mainly to be a case of a lawyer seeing an opportunity to make some money. The allegations of serious harm are dubious and the proposed solutions are much more destructive.

For instance, one of the reasons three of the top five domestic brandies are aged and bottled in Kentucky is because California is forcing distillers there to wrap their barrels in plastic or otherwise prevent the release of ethanol, which also prevents the spirit from aging properly.

The suit alleges that the fungus is borne by the alcohol vapors. This is likely untrue. Much more likely is that the spores are everywhere in the environment, just waiting for the right combination of water and ethanol.

Kentucky is enjoying significant economic development benefit from the present bourbon boom. In addition to increased bourbon production, there is significant ancillary business such as Beam's decision to move DeKuyper Liqueur production to Kentucky and Campari's decision to also bottle Skyy Vodka in Kentucky when it returns Wild Turkey bottling to the Commonwealth next year.

The Kentucky House, primarily because of representatives from dry counties, is constantly in danger of killing the goose that lays the golden egg. Kentucky doesn't have that many booming industries, it needs to play nice with the ones it has. Kentucky readers of this blog are advised to contact your legislators. While this is a court case and not proposed legislation, it never hurts to get a jump on these things. Perhaps something can be done proactively to prevent these nuisance suits from being brought in the future.

If the case gets to trial, it will be in District Court, but if it gets to the Sixth Circuit on appeal, the bourbon-makers will have a sympathetic ear. The senior judge there is Boyce F. Martin, Jr., who demonstrated in the recent case of Maker's Mark v. Diageo that he knows his way around bourbon.