In the 18th episode of the second season of “The West Wing,” President Bartlet and Communications Director Ziegler share a bourbon, and Bartlet says, “To be called bourbon it has to come from Kentucky, otherwise it’s called sour mash.”
Wrong on both counts, Mr. Fictional President. According to U. S. law, bourbon must be made in the United States, but every state has an equal right to make it. It just so happens that almost all of it is made in Kentucky.
Sour mash, a production method used by all major bourbon distillers, has nothing to do with it. The problem, of course, is Jack Daniel’s, which plays up ‘sour mash’ on its label and calls the bourbon it sells Tennessee whiskey for marketing reasons.
It might not be so confusing if Jack Daniel's was just another whiskey but since its non-bourbon bourbon is the best-selling bourbon in the world, everything Jack does matters.
‘Bourbon’ is a term-of-art defined in U. S. law at 27 CFR 5.22(b)(1)(i). ‘Straight bourbon’ is bourbon that has been aged for two years or more.
But what about Kentucky straight bourbon whiskey, the four-word phrase you see repeated like a magical incantation on so many bourbon labels? What does it take, legally, to put ‘Kentucky’ there?
Obviously, it means distilled and aged in Kentucky. But this raises two questions. How long does it have to remain in Kentucky to put the name on the label? And who makes sure the rule is obeyed?
The federal regulator, TTB, says only that a place of origin statement must be true. Kentucky state law, however, says that any whiskey that wants to put ‘Kentucky’ on its label must be distilled in Kentucky and aged there for “not less than one (1) full year.” (It’s KRS 244.370, and it became effective July 15, 2010).
The rule applies to all whiskey distilled in Kentucky except corn whiskey, which need not be aged at all. There is also an exception for just listing the address of the distillery as Kentucky.
Since Kentucky law only applies inside Kentucky, how they can enforce their rule?
Kentucky law can be enforced against anyone who has property or does business in the state and the penalty for violating this law is severe. Any Kentucky distillery that violates the rule can have their license revoked. The law even seems to say that if a Kentucky distillery merely sells whiskey that is less than one-year-old to someone who wrongly puts ‘Kentucky’ on the label, the distillery could face revocation. It doesn’t say for how long, it just says “the department shall revoke the permit of the licensee.” If imposed, it’s a death sentence. A bottler who is not the distiller is subject to the same penalty for merely bottling an offending product.
This is another reason why the TTB needs to go back to requiring a true age statement on all whiskeys less than four years old, instead of allowing the catch-all, “This whiskey is less than 4-years old.”
Presumably, if a whiskey is neither distilled nor aged in Kentucky, TTB will take care of that, but these days you can’t be sure. I don’t know of Kentucky’s Alcoholic Beverage Control agency (Kentucky ABC) ever coming down on anyone for this. It hasn’t been a problem but these days, with so many new bourbons and other whiskeys hitting the market, including some by producers who deliberately mislead consumers, and TTB in a coma, you can’t be too careful.