Tuesday, September 16, 2014
Flavoring Is Legal in American Whiskey. Yes, You Read That Correctly
When people say the Federal regulations for labeling distilled spirits are confusing and complicated, they aren't wrong. It is in the nature of laws that at times they can be hard to figure out. That's why there are lawyers and law schools.
I have always believed that the only difference between bourbon whiskey and straight bourbon whiskey is aging. (All of this applies to rye whiskey and all of the other named types too.) 'Bourbon whiskey' must be aged in new, charred oak barrels, but the rules don't say for how long. After the whiskey has been in the barrel for two years, it is entitled to be called 'straight.' If you just read Section 5.22(b)(1)(i) and (iii), you would think that's the only difference, but it's not.
If you jump ahead to Section 5.23(a)(2), you will find that "there may be added to any class or type of distilled spirits, without changing the class or type thereof, (i) such harmless coloring, flavoring, or blending materials as are an essential component part of the particular class or type of distilled spirits to which added, and (ii) harmless coloring, flavoring, or blending materials (HCFBM) such as caramel, straight malt or straight rye malt whiskies, fruit juices, sugar, infusion of oak chips when approved by the Director, or wine, which are not an essential component part of the particular distilled spirits to which added, but which are customarily employed therein in accordance with established trade usage, if such coloring, flavoring, or blending materials do not total more than 2 ½ percent by volume of the finished product."
In theory, then, such coloring and flavoring as described above which is not permitted in straight bourbon whiskey or straight rye, etc. is permitted in products just labeled 'bourbon whiskey' or 'rye whiskey,' without the 'straight.'
This came up because Templeton Rye has revealed to Mark Gillespie that their product, labeled as rye whiskey, contains flavoring pursuant to Section 5.23(a)(2). This is done, they say, to make the taste of their MGP-distilled rye more like the original Prohibition-era drink upon which their product is based.
Templeton's Scott Bush and Keith Kerkhoff gave Gillespie a wide-ranging interview on his WhiskyCast program last week. If you are interested in this subject it is worth a listen to hear their side of the story we wrote about two weeks ago here. The interview begins at 18:30 and runs about 20 minutes.
Just to be crystal clear, nothing can be added to straight bourbon or straight rye without changing the class. That is why Jim Beam's Red Stag, for example, is classified as 'Kentucky Straight Bourbon Whiskey Infused with Natural Flavors.' It's not straight bourbon, it's straight bourbon 'with,' which is a different classification.
Just because a whiskey is classified as 'bourbon whiskey,' without the 'straight,' that doesn't mean it does contain flavoring or coloring, just that it may under 5.23(a)(2), except for one thing. In the case only of bourbon, but not rye and the others, TTB does not recognize any use of HCFBM as being 'customarily employed in accordance with established trade usage.' Therefore, no additives in bourbon or straight bourbon are permitted unless TTB changes its mind about what's customary.
(Note: the paragraph above was edited on February 21, 2015 to reflect a statement received from TTB that can be found in the comments below. What took so long? It didn't seem warranted at first, but then it did.)
Another obscure rule says mixtures of straight bourbon are considered straight bourbon, but only if all of the components were distilled in the same state. Mixtures of bourbon made in different states must be labeled 'bourbon whiskey' and not 'straight bourbon whiskey,' even if all of the components are straights. Since age statements are required if the whiskey is less than four years old, you shouldn't need the word 'straight' to determine the product's age. Unfortunately, that's another rule currently experiencing lax enforcement.
Although the rules tell you what you must disclose, you can always disclose more voluntarily. Consumers who are really into whiskey want to know every true fact you are willing to reveal, so why not reveal all of them?
For most of modern history, none of this was an issue. Most American whiskey producers made the same things; straight bourbon, straight rye, corn whiskey, blended whiskey, and that was about it. The rules for many other types of whiskey existed but were rarely used. Today, micro-distillers especially but also the big producers are making all sorts of things, sometimes governed by different rules.
It's hard to keep up, but it's fun to learn new things.