Saturday, September 27, 2014

Enough of 5.36(d) for Now. Everybody, Meet Section 5.40

Here we are again, with our nose in the book. The Standards of Identity for Distilled Spirits, that is, the labeling rule book for the U.S. Treasury Department's Alcohol Tax and Trade Bureau (TTB). Today we're looking at Section 5.40, Age and Percentages. Since people seem to prefer TTB's Beverage Alcohol Manual (BAM), it's there in Chapter 8.

Before we started to write about Section 5.36(d), we contacted Tom Hogue. He is TTB's Director of Congressional and Public Affairs. We asked if our interpretation of 5.36(d) was correct and he said yes. We did the same thing with 5.40, which requires an age statement for any whiskey that is less than four years old. In recent years, TTB has allowed statements that read simply, “aged less than 4 years,” or something similar, instead of an actual age statement. We asked about that too.

Here is Mr. Hogue's reply:

"Age statements are required for all domestic or foreign whiskies, including blends, that are less than four years old.  For whiskies over four years old, the age statement is optional. TTB is not approving labels with 'aged less than' statements where an age statement is required."

Here is an example of a label in violation of 5.40:

It's obvious why this sucks. Is it three years, eleven months old? Or one week old? It effectively says, "we're not old enough for no age statement, so we're giving you a fake age statement."

If they're going to violate 5.40, they need not have bothered with the fake. Many micro-distillery products simply omit the age statement altogether, even though one sip tells you the whiskey is not more than four years old. Again, since TTB assumes compliance, a label submitted without an age statement on it is, for legal purposes, an affirmative statement that the whiskey inside is at least four years old. If it's not, you've committed perjury.

Oh yes, you have.

When they get caught with labeling violations, producers always insist they weren't trying to deceive anyone but why else leave off or fudge the required age statement? The rule is simplicity itself. If any whiskey in the mix is less than four years old, the age of the youngest whiskey must be disclosed on the label. There is no ambiguity and there are no exceptions. "It only applies to straight whiskey." Wrong. "It only applies to bourbon." Wrong. "It doesn't apply to blends." Wrong. "It doesn't apply to imports." Wrong.

Have TTB examiners given producers incorrect information about 5.40? There is evidence that they have. That's why we got an official statement from TTB. No excuses now.

TTB even tells you what form to use: "___ years old" or "aged ___ years" are the only options.

So is it not obvious that a person trying to sell you nine-month-old whiskey for $60 a bottle would rather you not know it's only nine-months-old?

If you think a lot of producers have been violating 5.36(d), there are too many to count breaking 5.40. Good luck finding one that is in compliance, and yet they do exist. Here's an example:

This matters because, as consumers, we have a right to know what we're buying, and this particular bit of information -- the true age of a whiskey that is less than four years old -- is required by law. Among other benefits, it levels the playing field, allowing one-year-old whiskeys to compete against other one-year-old whiskeys. Anyone who isn't proud enough of their effort to tell the truth about it probably does not deserve your patronage. The question looms, after all; if they're lying about this, what else are they lying about?


danz said...

"you've committed perjury." How about criminal liability for false statements under 18 U.S.C. §1001?

Matt L said...

Again, good work Chuck. And thanks for not beating around the bush about it, no producer could read this post and come away saying "yes, but that doesn't apply to my whiskey".

Anonymous said...

Heaven Hill Ultra Deluxe is aged for "36 long months." At least it follows the spirit of the law if not the letter!

Anonymous said...

I believe you should file a formal complaint to the TTB as a consumer and cc Adirondack Distilling. See where the chips fall. It will be a good test, because if the TTB doesn't care about it, then why does the label requirement even exist ?

Chuck Cowdery said...

I sent the picture of 601 to TTB, along with some others. Also, I was alerted to it by one of you dear readers. It takes a village.

merd said...

Again, love the writings, Chuck. Hope you read the Denver Post today:

I sent a big rant to my family based on everything you talk about here daily and my interactions with folks at distilleries out here in Colorado.

I will bite my tongue to say too much but will say that a new distillery opened up a tasting room a week ago. The employees gave me mixed information about their whiskey which is a 95% rye very similar in color, body and flavor from other products we know as being MGP. The gals there said it was aged in "That size barrel", pointing to a full sized 53 galloner... Since the rye was lighter in color and sort of cloudy compared to their bourbon which clearly tasted of small barrel and young age - and was stated to have been aged in 5 gallon barrels for 6 months, I just had to inquire if the barrels were reused for the rye.

The girls there, pretty and nice as they were, didn't know the product and another employee who works in the distillery proper stated that they were in fact using 5 gallon barrels for the whiskey as well as the bourbon but they were first fill and couldn't explain the clarity of the bourbon vs cloudy rye. He also stated that they distilled that rye whiskey. When asking about the vodka, he stated that they sourced it, however their labels for the vodka (which are silkscreened onto the bottle) clearly state "Distilled and bottled by..."

If you were to buy mass produced product and re-distill it, is that distilling? I know the definition of craft is getting blurred, but unless I make a cordial or infusion, have I transformed the ingredient (iron chef references) to make something unique? Do you think that they've done anything but add water and bottle it? Vodka doesn't count and I don't care about it, but here we have someone lying to the public in one or more forms - and to a well-to-do audience might i add with their location (not where the actual distillery is - it is miles down the road in a less hoity-toity and more affordable location and is not giving tours). With an undereducated spirits buying audience, i'd say they're going to do well, but shouldn't someone crack down on them? This is where I get irritated because they are going to build business capital on falsities.

I don't want to burn bridges or chap asses, and if it tastes good and you're willing to pay for it... thats great - but I would really prefer some disclosure and honesty in the mix. Maybe everyone is confused including the government and if there were clarity, some brands wouldn't have a leg to stand on, nor the sales to keep them alive. So with that said, maybe we're being too light on the subject and need some tailwhippings to commence.

Its obvious I need a drink about now and woke up on the wrong side of the floor.

Stilldaddy said...

It's pretty clear in the language of section 5.40 that all whisky, foreign or domestic, aged less than 4 years must state an age on the bottle with a specific quantity (years) rather than a non-specific statement, such as the example you provided above.

There are even large scale offenders to this, like Jack Daniels. Their "Rested Tennessee Rye" is, based on the strange way they address the age in press releases and the like, two years old. However, despite it saying 'straight rye whisky' on the bottle (and even if it didn't, it still has to conform with 5.40), there is no age statement to be found. So either it's over four years old (and they're lying about its age in the press releases) or it's younger and they're violating TTB law.

Stacy Thomas said...

This is an excellent article and a sorry reflection on the regulators who are supposed to control this and have instead allowed something approaching anarchy to creep in.

By the way in the first paragraph in the reference to the "Beverage Alcohol Manuel" the final word should be Manual.

Chuck Cowdery said...

Proofreading help is always appreciated.

Anonymous said...

I agree with Chuck, however, as a small producer the TTB has not been helpful. We use the "under 4 years" statement because we were denied a more specific "aged over 6months" statement. We were told to follow the example of other producers that used the more vague statement. We have also listed on the back of our label that it is aged for 6 months in small barreled. If the ttb can get on the same page with iysekf, a lot of these issues would resolve themselves.

I do think it's unfair to claim that were trying to dupe people when we're actually trying to follow the rules as the ttb sees them at the time. I'm glad there is now a clarifying statement so this can be corrected. We don't want to be out of compliance.

Anonymous said...

There is certainly nothing wrong with re-distilling a previously distilled low wine, beer or beer stripped run from your own or some other source to make it your own. Isn't that how one of the companies at the very heart of the craft industry "Stranahans" made their name, by purchasing beer from a neighboring brewery ?

Most whiskey is distilled twice. It matters little if that final distilation cut is made from what was originally your mash, or someone else's, provided that if you want to call it "straight" it is all done in the same State.
What's next, requiring that a distiller actually grow the corn ? The real question should always be, "who distilled the finished product".

Anonymous said...

It's clear that there are some intentaional offenders, but as much as the TTB rgulations are written in black and white, there is always some gray when the TTB interprets things. Sometimes they allow items on a label, sometimes they specifically dont and sometimes they dont even notice. This does need to change, but painting someone using the less than 4 yo age on a bottle as a scammer is misleading. That was allowed by the TTB for several years and then they stopped approving that. (they do often pay attention to what is submitted)

Merds comment about the distillery tasting room emphasizes the point that distillers better train their people to know their products better.As for the craft implication of redistilling GNS, sure it's craft if you believe that word is meaningful. A true craftsman would be proud to explain what he or she did to the NGS to make it a better more interesting product.

Jared J said...

Looks like the "offenders" are starting to attempt to sway opinion and give excuses. Wondered how long the ire would go on before they attempted a "We didn't want to deceive anyone we're just attempting to follow the law, its the TTB's fault". Riiiggghhhhttt. Hopefully the outing, public shaming, and eventual loss of business and closing of the doors happens SOONER rather than later for all "craft" distillers, especially those attempting to put up an excuse now that the tar n feathering has finally been ignited.

Anonymous said...

To Stilldaddy above the JD Rested Rye does state Rested in Oak for at least 24 months on the back label. Not an exact age but it is listed

Stilldaddy said...

Ah, there it is. Sorry, JD, and thanks, Anon. I hadn't thought to look near the government warning for an age statement.

VT Mike said...

Chuck, the belief that non-straight whiskeys don't require age statements seems to be quite pervasive. Any idea why that is?

The Hudson whiskeys from Tuthilltown Spirits seems to be the biggest offender. Or at least they have benefited more than anyone else from not putting age statements on very young, very expensive whiskey.

Anonymous said...

I visited the Hudson Distillery (Tuthilltown) a year or so ago, and they were very open about their short aging process, and actually seemed proud of it. Not saying they shouldn't change the label, just saying they were by no means trying to hide the fact that some of the whiskey was still coming from small barrels that were only aged for about a year. They claim that they will always use small barrels and blend young whiskey to maintain the flavor profile people have come to expect from their whiskey. Not crazy about Baby Bourbon, but the Four Grain is fantastic, despite the relatively young whiskey they blend into the batches. Even though they do not seem to be trying to deceive, the labels should certainly by adjust for compliance.

Chuck Cowdery said...

I recall seeing 'aged 3 months' on the Hudson Baby Bourbon label, but that was some time ago and perhaps they changed it. Obviously with a name like 'Baby Bourbon' they're not trying to hide the product's youth. Tuthilltown is one of the pioneers of the craft distillery movement and one of the good guys.

Anonymous said...

Hey Chuck, This is off the whiskey subject but does this same rule apply to people who are buying neutral spirit and watering it town and calling it "local" vodka when clearly its purchased from out of state.

Anonymous said...

Tuthilltown has absolutely never had any age statement other than "less than four years." Maybe they are "not trying to hide the product's use" specifically with Baby Bourbon, but what about the other whiskeys in the Hudson line?