Kentucky Mist Case Not Exactly What It Seems

There is something wrong with the way the Kentucky Mist v. University of Kentucky (UK) case is being reported and it is embodied in these two photographs from the Lexington Herald Leader (Kentucky's best news source, by the way). 

From most of the reports about this case it is easy to arrive at the following conclusions: (1) Kentucky Mist is a tiny, fledgling company being stomped on by a giant university. (2) UK wants to 'own' the word 'Kentucky' and prevent anyone else from using it. (3) The U.S. District Court for the Eastern District of Kentucky has sided with the big, bad university.

The proof that things are not exactly as they seem is in these pictures. The sign on the building says 'Kentucky Mist Moonshine.' The hats and other apparel they sell inside say 'Kentucky Mist Moonshine.' The name 'Kentucky Mist Moonshine' appears on all of the company's products.

Has UK made any effort to stop Kentucky Mist from using the name for any of those purposes? The evidence shows that it has not. UK merely objected to Kentucky Mist's effort to trademark its name for purposes such as use on apparel. The University of Kentucky already has a trademark for those purposes. UK is not objecting to Kentucky Mist trademarking its name for distilled spirits products and no one is objecting to Kentucky Mist actually using the name on apparel.

“The plaintiff here misstated UK’s intentions early on, attempting to create a controversy,” wrote Judge Danny Reeves in his decision. According to the New York Times, UK objected to Kentucky Mist's filing originally because they wanted to get an agreement from Kentucky Mist that it wouldn't use Royal Blue and White for its apparel, which are UK's colors. Instead of negotiating, Kentucky Mist filed suit. The result has been a lot of press coverage, millions of dollars worth of free publicity for Kentucky Mist.

So what about Kentucky Mist Moonshine itself? Well, 'moonshine,' first of all, is not a type of distilled spirit. It is any distilled spirit made illegally. So 'Legal Moonshine' is an oxymoron. Distillers and marketers use it to tap into the term's romantic outlaw connotations, especially in Kentucky's eastern mountain region where Kentucky Mist is located. Since moonshine isn't a type of distilled spirit, the product's actual type must be shown on the label. Kentucky Mist is 'spirits distilled from cane,' so sugar shine, a mash made from sugar (the same stuff you put in your coffee) that is fermented and distilled, at some alcohol concentration below neutrality (i.e., less than 95% ABV). 

That is pretty authentic. Table sugar is what most 'real' (i.e., illegal) moonshiners use because it is readily available, cheap, and easy to ferment. According to their web site, Kentucky Mist actually distills its product, unlike some well-known moonshine marketers who use commercially produced GNS. That's a good thing. Not so good is their attempt to link the founder's moonshining ancestor to Al Capone when both were in Atlanta Federal Prison. Capone was there only from 1932 until 1934 and already suffering from the syphilis that destroyed his mind. That the progenitor of Kentucky Mist "formed a good friendship" with Capone as claimed is highly unlikely.  

Legal alcohol producers should think twice before associating themselves with criminals and criminal activities.

The web site writer also doesn't understand the difference between a moonshiner (a maker of illegal spirits) and a bootlegger (a person who sells spirits illegally). 

Kentucky Mist seems to feel it has been done a great injustice but the facts say otherwise.

Today, Jack Daniel's Celebrates Its Fake 150th Anniversary

This morning, Brown-Forman celebrated the 150th anniversary of the Jack Daniel Distillery by ringing the opening bell at the New York Stock Exchange. They hung a huge banner on the outside and lined up all of their executives on the inside.

There is just one small problem with this celebration. It's a big fake.

The company has long claimed that “Mr. Jack Daniel was the first to register his distillery with the government in 1866, making it the oldest registered distillery in the United States of America.”

You would think that such a claim, involving registration with the federal government a mere 140 years ago, would be, well, on record somewhere and easy to check.

It isn’t.

Brand owner Brown-Forman says it has relied on information “passed down from generation to generation.” The available records, it says, are “inconclusive” due to the upheaval of the Civil War, Reconstruction, courthouse fires and Prohibition.

The ‘oldest registered distillery’ claim has been repeated so often, no one thinks to question it. Yet we are asked to believe that the federal government in 1866 decided to start registering distilleries for tax collection purposes and a 16-year-old boy in rural Tennessee was the first to comply.

Peter Krass, author of 2004’s Blood & Whiskey: The Life and Times of Jack Daniel, says Daniel's was not the first registered distillery in the country and never won a gold medal for world's best whiskey either. Krass says land and deed records show Daniel didn't even go into business until 1875, when he would have been a more realistic 25. Krass also says it's impossible that Daniel's was the first registered distillery because many Northern distilleries were registered long before 1866 to comply with revenue laws.

Depending on what you mean by ‘registered’ (which Jack Daniel's has never defined), the first ‘registered’ distilleries in the U.S. had to have been the ones that complied with the first federal liquor excise tax, levied on July 1, 1791.

The tax was on and off for about 30 years until it was abolished in 1818. Reimposed in 1862, it has been with us ever since. The rate was raised twice in 1864 and again in 1865. While the Civil War was underway, distilleries in areas not under control of the Union did not pay the tax, but plenty of distilleries in Union states got 'registered' and began to pay in 1862.

As consumer packaged goods go, whiskey was one of the earliest. Many claims were first made before anyone even conceived of ‘truth in advertising’ as a value. To some extent they were grandfathered in when the government began to police product claims in the early 20th century. No one means any harm. It has simply become part of the brand’s fabric, its background music.

No doubt this is not the first time a fiction has been trumpeted as fact at the NYSE and it surely won't be the last.

Woodford Reserve Releases Five Malt

For anyone who thinks the 'big guys' can't innovate, Brown-Forman's Woodford Reserve presents Five Malt, the most recent release in its Distillery Series family.

The Distillery Series, introduced in 2015, is Woodford Reserve’s line of creative expressions sold at the Woodford Reserve Distillery and select Kentucky retailers.

Five Malt was inspired by the popularity of micro-brews that explore different types of malted grains. It also uses an aging process designed to complement the grain recipe. To realize the desired sensory elements, minimum wood exposure was required. Five Malt is a whiskey distilled from malt mash then aged in recycled Double Oaked barrels for six months.

“Five Malt is another great example of flavor-focused innovation practiced at the Woodford Reserve Distillery. We take pride in our ability to create unique types of whiskey above and beyond expressions most commonly seen on shelves,” says Woodford Reserve Master Distiller Chris Morris.

Five Malt goes on sale at the Woodford Reserve Distillery and select retailers in Kentucky on Thursday. It is bottled at 90.4 proof and has a suggested retail price of $49.99 for a 375ml bottle.

The press release from which this post was derived makes no attempt to explain the name 'Five Malt.' We are free to assume it means five different malts were used in the mash bill, but is that the case and, if it is, what are they? The word 'malt,' when used with regard to beer or whiskey, usually means barley malt, but any grain can be malted. Is this a barley malt product? Or are other malted grains used?

A list would be helpful. Such a request has been placed.

Note that the official classification of this product is 'whiskey distilled from malt mash,' and not 'malt whiskey.' That is because it is aged in used barrels. 'malt whiskey,' under U.S. rules, must be aged in new, charred oak.

The federal regs don't define 'malt' as 'malted barley,' but in the list of whiskey types it includes both 'malt whiskey' and 'rye malt whiskey,' which certainly suggests that 'malt' without a modifier means 'barley malt.' Common industry usage also supports that assumption.

All of which raises the question, is Brown-Forman hiding something?

UPDATE 6/15/16: The five malts are malted wheat and four varieties of malted barley. The malted barley varieties are 2-Row, Pale Chocolate, Kiln Coffee, and Carafa. Oddly, the release of this information had to be approved by the company's lawyers. Also, you may see versions of the photograph that show an April 2015 bottling date. That was a mock-up. I asked for and received a real bottle shot showing the actual bottling date of Fall, 2015.

Let Them Make Gin

Anybody who wants to make whiskey is posed with a dilemma. How can I generate revenue while my whiskey matures?

There are many possible solutions. For many, the answer is gin.

Gin is attractive for several reasons. It is increasingly popular and the template for gin is very loose, so there is rich opportunity for creativity.

But what is gin?

Humans mostly ‘taste’ with our sense of smell. This is true in the appreciation of fine spirits and with no category more so than gin. A great gin is almost as much fun to nose as it is to drink.

Gin is neutral spirit that has been flavored. Juniper berry is the signature note, but usually just the beginning. Citrus peel (orange, lemon, lime) is common, as are coriander seed and cassia bark. Nothing is off-limits so distillers can experiment to their heart's content.

Most producers regardless of size don’t make the neutral spirit, they buy it from a specialized distiller. Although the neutral spirit doesn’t have to be made from grain it usually is.

Cheap gins get their flavor and aroma—what there is of it—from a liquid concentrate made in a flavorings lab. The producer takes a tank of neutral spirit, adds a few quarts of concentrate, stirs it, and bottles it up.

Artisanal gin-makers use a more laborious method. They take the natural seeds, berries, barks and peels (known collectively as 'botanicals') and infuse them into the spirit through a re-distillation process that both captures and concentrates the delicate, savory flavors and aromas. Most craft distillers find a pot still dedicated to gin production is the way to go, although there are many variations.

One way gin producers can distinguish themselves is by growing some or all of their botanicals. This is what Castle & Key intends to do. They will feature the botanicals garden as part of their landscaping.

Although you shouldn’t mess around with re-distillation, you can make gin at home using an infusion process. You just soak the botanicals in vodka, heated slightly (but be careful you don’t cook off the alcohol). You can get juniper berries and other suitable flavorings in the spice rack at the supermarket, although a specialized herbs and spices store will have more variety.

Juniper berries also are good for flavoring beef and lamb.

Most new gin makers will produce the London dry style, which also dominates the major commercial brands. Plymouth gin is a different style, slightly less dry.

A very different style is Dutch gin, which is the original gin. It shows a lot of the green spirit, like slivovitz, or a pomace brandy such as marc or grappa. You get bitter lemon and rye grass, and not much juniper or other aromatics. Unlike London Dry gins, Dutch gins contain sweetener, which makes them literally bittersweet, like horehound candy.

Dutch gin is common in The Netherlands, of course, but also in French Canada. It is unlikely that many American craft distillers will make oude genever.

Bourbon Archaeology and Jack Jouett; American Hero, Distiller

Jack Jouett is the most famous Kentuckian you’ve never heard of. Nicknamed “The Paul Revere of the South,” Captain Jouett’s night ride on June 3, 1781, warned Virginia governor Thomas Jefferson and several patriot members of the Virginia legislature that 250 British troops were coming to get them. Thanks to Jouett, Jefferson and most of the legislators got away.

Jouett later moved to what is now Woodford County, Kentucky, where his home has been preserved as a historic landmark. You may visit it if you'd like.

If you have even more time to spare, you might want to become a volunteer archaeologist. Nicolas Laracuente heads a team that is exploring Jouett's 18th century farm distillery, and other farm distilleries nearby. Laracuente and his team are pioneering a new field, bourbon archaeology. Believe it or not, the earliest days of Kentucky's landmark whiskey industry have been little studied by historians and archaeologists.

You can read all about it in the new issue of The Bourbon Country Reader. 

The Reader itself is brushing up against history. It began more than 20 years ago. It is the oldest publication devoted entirely to America's whiskey. This is issue number 100. (Back issues are available.)

Also in this issue, an inside look at the restored Old Taylor Distillery near Frankfort, now known as Castle & Key. It is almost ready to start making whiskey again after half a century. Also close to completion are two new distilleries, Wilderness Trail in Danville and the Bardstown Bourbon Company.

All three represent a new trend, whiskey distilleries that while they are much smaller than the familiar majors, they are hardly 'micro.' The Reader is all over it.

To experience The Bourbon Country Reader for yourself, you need to subscribe. Honoring tradition, The Bourbon Country Reader still comes to you on paper, in an envelope, via the USPS.

A subscription to The Bourbon Country Reader is still just $20 per year for addresses in the USA, $25 for everyone else. The Bourbon Country Reader is published six times a year, more-or-less.

Click here to subscribe with PayPal or any major credit card, or for more information. Click here for a free sample issue (in PDF format). Click here to open or download the free PDF document, "The Bourbon Country Reader Issue Contents in Chronological Order." (It's like an index.)

If you want to catch up on what you've missed, bound back issue volumes are available for $20 each, or three for $50.

If you prefer to pay by check, make it payable to Made and Bottled in Kentucky, and mail it to Made and Bottled in Kentucky, 3712 N. Broadway, PMB 298, Chicago, IL 60613-4198. Checks drawn on U.S. banks only, please.

Come See Me in Louisville, June 18

WhiskyLive is coming to Louisville and I'll be there, signing books on Authors Row between 8 PM and 9:15 PM. I'll be hanging around for the whole event. If there is a place to sit, that's probably where you'll find me.

WhiskyLive is an international whisky show, sponsored by Whisky Magazine.

This is WhiskyLive's first time in Louisville. It's also my first appearance at a WhiskyLive event.

For a 15% ticket discount, use the coupon code AuthorsRow.

Come say hello.

A Comment About Yesterday's Post

I did not intend yesterday's post to launch a micro vs macro war. (Read the comments.) You don't have to produce more than 500,000 proof gallons of whiskey per year to be significant or successful. Every business defines its mission its own way. Small isn't automatically good or bad, nor is big. Thinking that way misses the point. My purpose yesterday was just to identify, factually, where and by whom all but a very small percentage of America's whiskey is distilled. Opinion has nothing to do with it. All I am interested in is the volume of liquid coming off the stills.

Part of that post's message is that, despite the proliferation of new products at retail, and the constant drumbeat of new this and new that in the media, the list of actual distillers hasn't changed very much. The big have all gotten bigger.

My baseline of 500,000 proof gallons per year is arbitrary. As I learned today, of the two new distilleries on the list, only Michter's has actually achieved that level. New Riff is very close at 450,000. I left them in place, with an update, because I don't believe anyone else is bigger. If I missed someone who is, please let me know. (Update 6/6/16: After crunching the numbers a bit more, New Riff says it is right about at 500,000.)

If we're being picky, I'm not entirely sure the Woodford Reserve Distillery belongs on this list. I'm checking to see if, in fact, it produces more than 500,000 proof gallons per year. It might not. Brown-Forman's other two distilleries produce many millions, with Jack Daniel's being the biggest whiskey-maker in the country. (Update 6/5/16: It's confirmed. Woodford produces more than 500,000 proof gallons per year.)

In Scotland's biggest malt distilleries, you see row after row of huge copper pot stills. That's what it takes to produce a large volume of spirit using pot stills, which is what Woodford uses. If anyone can come close to Woodford using only pots it is Popcorn Sutton in Tennessee, but they currently are using only a small fraction of their capacity. No one in the USA, not even Woodford, approaches the size of Scotland's biggest malt distillers.

In recent years, micro-distilleries have become an important part of the American whiskey mix, just not in terms of volume. They bring excitement, new ideas, and new customers to the whiskey category. God bless them. Many never will approach 500,000 proof gallons and do not aspire to. That's not their business. Some small distilleries make good whiskey, some do not. That is not a function of size.

The actual output of America's small distilleries is all over the map, but most are very small, producing maybe 10,000 proof gallons per year if that. Many make a variety of products, not just whiskey, using the same equipment. If a 10,000 gallon distillery upgrades to 100,000 that is a huge deal for them and their fans, and for the overall industry in other ways, but it still doesn't make them very significant in terms of total industry volume.

All of this is very new and changing rapidly. The most exciting recent development has been the emergence of the 'mid-majors,' of which Michter's and New Riff are the vanguard. This segment is on track to explode in the next two years. You can read all about it in the new issue of Whisky Advocate.

As for the term 'craft distillery,' I don't mind people using it, but recognize that it is a marketing term. Whatever 'craft' actually means, it too is not a function of size. 'Craft Distillery' has a more appealing sound than the more accurate 'Micro-Distillery,' and 'Micro-Distillery' isn't perfect either. There is nothing 'micro' about the new Michter's. Perhaps in time we will have better terminology for all of these classifications.

One place where the large and small distilleries are on more equal footing is tourism. Sure, Jack Daniel's logs 250,000 visitors a year, but even the rest of the majors don't come close to that. Many visitors enjoy their small distillery visits more than the large ones because often their 'tour guide' is the owner and distiller. That very intimate contact is something the big guys can't match and it does inspire brand loyalty. Economically, the importance of tourism is based on how much money each tourist spends. The small distillery visitor spends the same amount on lodging, meals, and entertainment as the large distillery visitor. Distilleries are economic boons to the communities in which they are located regardless of size.

In Kentucky, which obviously has the most highly developed whiskey tourism economy, small distilleries have been a huge contributor. Kentucky's mix of small and large distilleries is an appealing combination for visitors. The same effect is being felt in Tennessee.

So take yesterday's list for what it is, nothing more, nothing less. The new players are hugely important in many different ways, but any suggestion they will supplant the entrenched behemoths is beyond laughable. That is not even important. What is? That American whiskey has never been stronger. Quality is high, there are many options, and always something new. American whiskey has become more than a beverage, it is a phenomenon. Lots of people are having fun with it and lots of people are making money from it. It's all good.

Who Makes America's Whiskey?

In Bourbon, Strange, published just two years ago, I wrote that, "the industry is very concentrated, with just eight companies distilling all of America’s whiskey at thirteen distilleries."

It is now ten companies and 15 distilleries.

Then and now, micro-distilleries are excluded. Nothing against them. They are out for two reasons: (1) There are too many to keep track of. (2) They have virtually no impact on industry volume because they are so small.

To accurately portray the industry today requires, first, a new definition of who I will count. New since 2014 is the emergence of what I call 'mid-majors.' These are distilleries that are still much smaller than the thirteen on 2014's list, but their output is significant. Let's put the threshold at 500,000 proof gallons per year.

Only distilleries currently in production at or above that level are included. Several more will come on line this year and even more are scheduled to start up in 2017.

The companies that operate more than one distillery are first, with the number of distilleries they operate in parens. All of the rest have one each and are in no particular order.

Beam Suntory (3) 

In Kentucky, Beam Suntory operates three whiskey distilleries, a bottling and aging site at a silent distillery, and several other satellite aging sites. They are Kentucky’s biggest producer. Two of their distilleries, Clermont in Bullitt County and Booker Noe in Nelson County, are branded as Jim Beam. The third Beam plant is Maker’s Mark, at Loretto in Marion County.

Brown-Forman (3)

Brown-Forman makes whiskey at two distilleries in Kentucky and one in Tennessee. The Tennessee distillery is Jack Daniel’s in Lynchburg. The Kentucky distilleries are Brown-Forman in Shively and Woodford Reserve near Versailles.

Sazerac (2)

Sazerac has two American whiskey distilleries, both in Kentucky. They are Buffalo Trace in Frankfort and Barton 1792 in Bardstown. They also have a large aging complex and bottling house in Owensboro, a micro-distillery in Virginia, and several other facilities.

Kirin

Kirin's distillery is Four Roses in Lawrenceburg, Kentucky. They also operate an aging and bottling site at Lotus.

Campari

Campari's distillery is Wild Turkey in Lawrenceburg, Kentucky, with remote aging sites at Camp Nelson, and adjacent to Four Roses.

Diageo

Diageo operates the George Dickel Distillery in Tullahoma, Tennessee. It has an aging site at Stitzel-Weller in Shively, Kentucky.

Heaven Hill

Heaven Hill’s distillery is in Louisville but the company’s roots—along with its corporate offices, bottling house, and most of its rackhouses—are in and around Bardstown.

MGPI

MGPI, based in Kansas, operates the old Seagrams Distillery in Lawrenceburg, Indiana, which it calls MGP of Indiana.

Michter's

The Michter's Distillery is south of Louisville in Shively. It started producing in 2015.

New Riff

The New Riff Distillery is in Newport, Kentucky, just across the Ohio River from Cincinnati. It started producing in 2014.

Update 6/4/16

Just learned that I overshot with New Riff. They are at 450,000. Close but no cigar. If I missed anyone who is above 500,000 proof gallons of whiskey production per year, I hope they will let me know.

Update 6/6/16

New Riff re-ran the numbers, bringing them up to 500,000.

Four Roses Isn't Messing Around

Photo by Ben Carson for The Anderson News.

This photograph appears in today's issue of The Anderson News, a newspaper (and web site) serving Anderson County, Kentucky. What is it, under that plastic wrapping? It is a boiler, headed to the Four Roses Distillery. As reported by Ben Carson, it is a 100,000 gallon boiler, manufactured in Minnesota, that will replace the current boiler and also support the distillery's $34 million expansion.

The boiler is an essential part of any distillery, although it is not something most people think about when they ponder a distillery's component parts. On one level it is simple, it boils water to produce steam. The complicated part is doing that safely and consistently on a large scale.

Historically, most of them were fueled by coal. Today it is natural gas.

If you ever tour a craft distillery and ask to see the boiler (not usually on the tour), it probably will look something like this.

Columbia MPH30 boiler at Scratch Distillery in Edmonds, Washington.

The capacity of this boiler is 227 gallons. There are, of course, boilers of all sizes in between. Many of the new distilleries in Kentucky, such as Michter's, Wilderness Trail, Castle & Key, and Bardstown Bourbon Company, have boilers not much bigger than this one, so the image of the new one for Four Roses is a bit shocking. Many of these new plants have initial capacities close to one-million proof gallons, which is a lot and in no sense 'micro,' but the big boys such as Four Roses are still much, much bigger, and most of them are expanding.

A distillery is an expensive proposition, small or large. A whiskey distillery investment means banking on an unknowable future. Guess wrong either way (too much or too little) and you stand to lose an enormous amount of money, but you will make an enormous amount of money if you get it right. Kentucky is not the go-to state for very many businesses, but it remains the location of choice for bourbon-making. Despite bourbon now being made in more places than ever before, the industry continues to be concentrated in Kentucky.

Danville's Wilderness Trail Distillery, which is building a new facility west of town, will be using a locally-made boiler from Sellers Manufacturing. The 75-year-old company has a factory in Danville but is based in the Chicago suburbs. Shane Baker of Wilderness Trail says they chose the Sellers boiler in part because it is locally-made and also because it uses no water treatment chemicals.