Whisky Advocate

Guest blog: Chuck Cowdery on those confusing bourbon regulations

June 11th, 2010

Chuck is a leading authority on American whiskey and, of course, one of Malt Advocate magazine’s regular feature writers. He also has a great blog you should be checking out. He’s here to clear up all the confusion about those subtle nuances of American whiskey regulations. Take it away Chuck. (And feel free to ask that question you always wanted the answer to.)

There is a lot of activity in the distilled spirits world right now, much of it at the intersection of production, marketing, and government regulation. Tuthilltown’s sale of its Hudson Whiskey line to William Grant & Sons has raised questions about differences between American and European definitions of whiskey, which have nothing to do with how the word is spelled and everything to do with how and for how long the spirit is aged.

Alcoholic beverages also seem prone to myths, some of which die hard. Although bourbon whiskey is strongly associated with Kentucky, for example, there is no law restricting its manufacture to that state. Many people also believe that Kentucky is the only state name that can appear on a bourbon label but that’s false too. There are similar myths about the relationship between bourbon and Tennessee whiskey.

The actual rules can all easily be found in one place, the Code of Federal Regulations, title 27, part 5, subpart C. The rules apply to all products sold inside the United States, whether made here or imported.

The rules don’t restrict what producers can make, just what they can call it.

They can be confusing.

One easy way to understand them is as a hierarchy or winnowing. The legal definition of “alcohol” is very broad. The definition of “whiskey” is more narrow and the definition of “bourbon whiskey” is even more restrictive. Each level incorporates the requirements of the one below.

To simply use the term “whiskey” the spirit has to be made from grain, distilled at less than 190° proof (95% ABV), and stored in oak containers. The rules don’t say anything about the type of oak container (new, used, charred, toasted. etc.), nor barrel entry proof, nor minimum age.

European Union (EU) rules are the same except they require a minimum of three years in wood.

For a product to be labeled “bourbon whiskey” it has to meet tighter requirements. The mash must be at least 51% corn, the distillation proof has to be less than 160° proof (80% ABV), the barrel entry proof has to be less than 125° proof (62.5% ABV), and the oak containers have to be new and charred, but there is still no minimum age specified.

Hence Hudson Baby Bourbon Whiskey may be just three months old and legal in the USA, while in the EU it can be called bourbon, but not whiskey.

That brings us to “straight bourbon whiskey,” which has to comply with all of the above plus spend at least two years in wood. Why the word “straight” was chosen to mean “aged in wood for at least two years” I cannot explain.

Finishes and infusions are another controversial area. Many people have argued, incorrectly, that Red Stag by Jim Beam forfeited the right to call itself bourbon by adding a maceration of black cherries and other flavors. Some are raising similar concerns about the new Maker’s Mark 46, which spends a little time in what are technically used barrels, with additional un-charred wood surfaces added. Woodford Reserve, Jim Beam, and Buffalo Trace have all used wood finishes, comparable to single malt scotch finished in sherry casks.

The best way to understand finishes and flavorings is that just as you can’t un-ring a bell, you can’t un-bourbon a bourbon. What you get when you add something to it is “bourbon and…” The official description of Maker’s 46, for example, is “Kentucky bourbon whiskey barrel-finished with oak staves.”

The purpose of these regulations is not to protect the purity of bourbon, it is to ensure that consumers know exactly what they’re buying.

No Responses to “Guest blog: Chuck Cowdery on those confusing bourbon regulations”

  1. Richard says:

    Great post Chuck! I’m always glad to see you getting the word out to dispell these myths. I’m always curious how they started and how they became so pervasive.

  2. Red_Arremer says:

    Good post, Chuck. Your last sentence there is key. These aren’t auto industry safety regulations. No one will die if a low quality whisky comes on the market. The point isn’t to make sure people are buying something that traditionalists and experts approve of, but simply to ensure that people know what they’re buying.

  3. two-bit cowboy says:

    Thanks for clearing up a few easy-to-misunderstand nuances, Chuck.

    A question though: a few days ago Gable Erenzo said Tuthilltown hadn’t been “acquired” by Grant. Has something changed?

    • Tuthilltown can speak for itself, but as I understand it Grant only acquired the rights to the Hudson Whiskey line. They did not buy the distillery, but the agreement ensures that the Hudson Whiskeys will continue to be made by Tuthilltown.

  4. JB says:

    So…can Jack Daniels legally be called bourbon? Unless I am missing data…I’d say yes. It’s just not marketed as such.

    • The question has never been tested but, yes, I believe there is nothing in the regulations that prevents Jack Daniel’s from being labeled as bourbon. Brown-Forman simply prefers the term “Tennessee Whiskey.”

      • Aaron says:

        So, a bourbon may be charcoal filtered? I know this is one point that I’ve heard conflicting information on.

        • Although they don’t have as much charcoal contact as the Tennessee Whiskeys do, most bourbons are charcoal filtered just prior to bottling.

          • Matt B. says:

            Also different “charcoal” – most whiskeys are filtered (after aging) through Activated charcoal (like what’s in a Brita water filter) which is nearly pure carbon and great at filtering out impurities. Tennessee whiskeys (Jack and George) use the Lincoln County Process which is filtering through sugar maple charcoal (before aging). This charcoal is more like what you grill with in your backyard. Fans think this “contributes” to the flavor of Tenn. whiskeys, but detractors say that this process adds some amount of flavoring to the spirit, and therefore cannot be called Bourbon because of this. Only water can be added to reduce proof. Anything else and it’s “Bourbon and…” like Chuck said.

          • The whiskey also has contact with charcoal in the charred barrel. That charred interior surface is charcoal.

            The ‘detractors’ can believe whatever they want, but there has never been a ruling from the TTB to the effect that Lincoln County-processed whiskeys cannot be called bourbon. That’s a myth.

  5. Matt J. says:

    Great clarification as usual, Chuck. One more question, what is the regulation, if any, on age statements with straight bourbon?

    • Age statements are required if any of the whiskey is less than four years old. If all of the whiskey in the bottle is more than four years old, the age statement is optional.

  6. A very informative post, Chuck. I agree with you and Red that giving the buyer the best possible information should be the reasoning behind all regulations. This might well be the case for the US, but in Scotland the SWA constantly talks about their self-proclaimed mission to defend the “heritage” of Scotch and tries to enforce the regulations whenever possible. Spice Tree, Glen Breton, you name it.

  7. TheMandarin says:

    I’m cool with SWA saying that they want to defend the heritage of scotch. Nothing wrong with that on it’s own. However, and I’m guess you’re getting at this Oliver, we should be critical of when the word “heritage” is being uttered by the SWA as marketing mumbo jumbo…Mumbo jumbo that is invoked to humanize and historicize the abstract pursuit of the “bottom line.”

    • Exactly. How for example can you make experiments in shrinkwrapping casks like Diageo did and then threaten to sue someone who puts additional oak staves into their casks as was the case with Compass Box?

  8. Morgan Steele says:

    Great post. I was researching this issue earlier this week after a conversation at a cigar bar. The site I originally found mentioned that the only state able to label its name on bourbon was Kentucky. This wasn’t mentioned in the C.F.R. so thanks for clearing up another myth!

  9. Ethan Prater says:

    Chuck -

    Is there a nuance with California law on the topic of what can be called whiskey – something like the 3-year rule? I remember that Old Potrero used to be labeled as “Single Malt Spirit” in CA (the <3 year old expression), with the same product labeled as "Single Malt Whiskey" in NY and other states. The CA label also said something like "For Sale Only in California".

    Not sure if this still holds, but definitely was the case in the early '00s.

    • States do not have the right to create their own labeling requirements for distilled spirits, which is one of the reasons we should all oppose HR 5034, which could change that. Do we really want California defining bourbon?

      • KD says:

        I believe where Old Potrero’s naming issue arises is with regard to the term ‘Rye’. To be Rye, it must be aged in charred barrels. Potrero’s barrels are not charred, but toasted, as Fritz believed was in accordance with 18th Century Rye-making processes. The 19th Century Potrero IS aged in charred barrels. Thus, the 18th Century is ‘Single Malt 18th Century Style Whiskey’, while the 19th Century is ‘Single Malt Straight Rye Whiskey – 19th Century Style’.

  10. Steffen Bräuner says:

    Great post chuck

    A question : The bottles I’ve seen named Corn Whiskey looks like newmake, but according to the rules you mention it must have been on oak casks ? Is 10 minutes enough ?

    Macdeffe

    • Ten minutes is enough, but the rules actually make an exception for corn whiskey. Corn whiskey need not be aged at all and if it is aged, it may not be aged in new charred barrels. Corn whiskey aged in new charred barrels is bourbon. If corn whiskey is aged at all, it must be in barrels that are new but uncharred or (and this is most common) in used barrels (like scotch).

  11. John Hansell says:

    Thanks Chuck for taking the time to do this guest blog. Much appreciated!

  12. Ralph Erenzo says:

    Thanks Chuck for your typically qualified and clearly stated facts.

    I’m discovering, in the course of addressing the EU regulation you mention, substantial and emotional response from some quarters that speaks with the sense of entitlement. As though the rules of Whiskey are Received Truth and there is but one source of that Truth.

    Like so many other things, powered flight, the telephone, incandescent light bulbs, the development of whiskey (no matter how you spell it, thank you) is a shared international experience with regional variations that account for the recognized provenances. History records the Wrights were first; same applies for Edison’s “invention”. But other engineers and scientists in other parts of the World were developing these concepts and technologies at the same time. It is the same with whiskey. The Irish and Germans having arrived in America with distilling experience made rye whiskey in the New World when they arrived and called it whisky/whiskey, or whatever it was known as in their particular region of their particular dialect.

    For the record, Chuck is correct; the HUDSON WHISKEY line, which was developed and continues to be produced by TUTHILLTOWN SPIRITS, has been acquired by W GRANT AND SON. We are very happy to be working with this venerable company and we will continue to produce HUDSON at Tuthilltown for years to come. The Tuthilltown crew thank all for the support and encouragement. Come visit, we’d love to show you all around.

  13. Sjoerd de Haan says:

    Hi Chuck!

    Great post, and incredibly cool of you to take time for some posting afterwards!

    Do you know if your book is available in Europe? I can’t find it at my regular suppliers (do you maybe have and ISBN for me?)

    Thanks!

  14. Thanks for asking.

    ISBN 0-9758703-0-0

    Click on my name to go to my blog, where you can order it from my web site, shipped to anywhere in the world. It’s also available on Amazon.

  15. 666ppm says:

    Great post!

    One question regarding Tennessee Whiskey: I heard that for a whiskey to be called Tennessee it
    - must came from Tennessee and
    - Lincoln County Process and Sour Mash Process MUST be applied

    Is that correct?

    • The rules say that if a product label claims a place of origin, the claim has to be true. In that sense, yes, Tennessee whiskey must be made in Tennessee.

      As far as the government is concerned that is all it has to be, whiskey made in Tennessee. There is no requirement that either the Lincoln County process or the sour mash process be applied.

      As far as the industry, not the government, is concerned, the so-called Lincoln County process is characteristic of Tennessee whiskey, but the sour mash process is not. Virtually all American whiskey makers, all of the major ones anyway, use the sour mash process.

  16. pH says:

    Chuck,

    I’m writing because I can’t find any definitive answer anywhere online or among people I’ve talked to.

    Bourbon producers (or their brand ambassadors that I’ve talked to) swear up and down that nothing – caramel or whatever – positively nothing goes into bourbon aside from bourbon. NOTHING is added. They claim that this is a legal requirement to be called bourbon.

    Problem is, I’ve been going over the statutes online and I can’t find anything that matches this claim. Nothing can be added to anything called STRAIGHT whiskey, but not all bourbons are straight bourbons.

    Can you help me figure out where in the law it says that nothing can be added to bourbon – or correct me if this is mistaken? I’d be much obliged. Feel free to respond by email if it is more convenient. Cheers.

    For the sake of ease, here is the link to the regs:
    http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=f45b0281e8a3f372f96c2a93b462cc89;rgn=div5;view=text;node=27%3A1.0.1.1.3;idno=27;cc=ecfr#27:1.0.1.1.3.8.25.2

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