Whisky Advocate

And you wonder why whisky companies don’t import their whisky to the U.S.?

December 3rd, 2010

It’s not always because they don’t want to. Sometimes our government’s bureaucracy makes it nearly impossible for them to do so.

Yes, we addressed this issue before here with Amrut from India. Well, here’s another example of your U.S. tax dollars at work.

It’s true that “straight” whiskeys here in the U.S., like straight bourbon and straight rye whiskeys, must be aged in new, charred oak barrels. But it’s ridiculous for our government to require a whisky outside of the U.S. be aged in new charred oak barrels to be called a “single malt,” as described below by the importer of Amrut and (hopefully, some day) The English Whisky Company.

Many of you will recall that last year I wrote lamenting about the TTB’s decision to not allow Amrut to be designated as a “Single Malt Whisky”. After appeals and clarification they relented allowing US consumers to enjoy another Single Malt Whisky.

At Purple Valley Imports we are focused on bringing world class single malts to US consumers and have been working to offer the English Whisky Company Single Malts to the US market.

Well, the powers that be are up to the old tricks again.

We recently presented The English Whisky Company’s Chapter 6 and Chapter 9 to the TTB Beverage Lab for analysis. (Any “Whisky” not from Scotland, Ireland, Canada or the US must go through lab testing).

Although the English Whisky distilled spirits taste, smell and drink like Single Malts the TTB department has deemed that we may call these “Whisky or Whiskey” but not “Single Malt”. Their reasoning? Well, the spirits are not aged in “new oak charred barrels”. 

As all of you are aware the majority of distilleries in Scotland use ex-Bourbon barrels. Bourbon is aged in new oak charred barrels and can only be used once. So, technically whisky is being aged in “new oak charred barrels that have had bourbon pass through them”.

The English Whisky Company, is the first new distillery in England in over a century. Located some 250 miles from Scotland they produce “Single Malt” Whiskies using barley grown and malted in England. (By the way some 60% of the barley used for Scottish Malt Whiskies is grown in England).

Andrew Nelstrop, Managing Director of The English Whisky Company commented: “We use only English barley, malted in England. The whisky we are producing at present was also peated in England. I am not aware of any distillery that can claim they use 100% barley, water and yeast produced in their own country other than ourselves”.

So, here is a small Distillery producing a wonderful dram (can I  call a whisky that isn’t from Scotland a dram?), that the US will not allow to be labeled as “Single Malt”.

Yet, they will allow whiskies from a distillery in Wales (which is much further in distance to Scotland then the English Whisky Company is) to do so.

Well while the rest of the world enjoys The English Whisky Single Malts, the consumers in the US can only dream. 

We are appealing this from here and from the UK. As always we appreciate your support and comments

Cheers,

Raj Sabharwal

50 Responses to “And you wonder why whisky companies don’t import their whisky to the U.S.?”

  1. Hear, hear! We (Mackmyra, the Swedish Single Malt Whisky) are also painfully aware of the problem… and then some.

    Good luck!

  2. Hi john,
    This is a remarkably simple argument according to the TTB. Whisky not aged in new oak cannot be called “malt”. So very odd, given the word malt applies to the barley and has nothing at all to do with cask selection. My own head scratching moment comes when I consider the fact that welsh and Indian whisky have been granted an exception to this rule. Surely once a precedent is set, it must apply to everyone else. We will keep working on it, hopefully our neighbours across the pond won’t have to wait forever to sample our “single malt Whiskies”
    Andrew

  3. sam k says:

    This seems to be such a painfully arbitrary and inconsistent process, and appears to be based on personal opinion instead of well reasoned, written guidelines. Is there someone at TTB who can be our sounding board for this issue?

    • Red_Arremer says:

      Right Sam. We’re only hearing one side here– though I don’t doubt that Purple’s claims are true.

      John, maybe some more investigation and another article on US whisky law is in order?

  4. Bill H. says:

    This is why Yamazaki 12 and 18 are the only Japanese single malts we get in the US.

  5. Ed in PA says:

    This doesn’t surprise me – our government is drunk with power.

  6. Paul M. says:

    I would have to guess that what it comes down to is a bureaucrat whose desk it landed on that is completely ignorant about the subject.

    • two-bit cowboy says:

      Yes! Ignorant, and unfortunately, “responsible for (or charged with) making that decision.” But everyone has a boss.

      Wyoming has but one congressional representative, but you can bet a copy of this informative message will land in her — and our two senators’ — email in boxes tonight!

  7. Keith says:

    Isn’t there an old story about Nikka not being int he US because some bureaucrat said, “Japanese whisky doesn’t exist.”?

    It seems like a half page checklist would clear this whole mess right up, but I guess that’s why I’m not a government official.

    • Barry Jay says:

      Keith, a friend of mine worked in military transportation and he showed me an invoice for articles going to Iraq. Twp pages covered one item listed as “Fiber obtrusive securing device-steel”. After spending 10 minutes reading thru the document you realize it was wood screws.

      As someone else said here…we have to move these guys out of office, it’s out of hand…

  8. Louis says:

    While the sub-prime crime was percolating, Congress was holding hearings about steroids in baseball, Spygate, and why Utah can’t be in the BCS championship. So bureaucrats not understanding single malt whisky hardly comes as a surprise.

  9. Matt B. says:

    This is the text of U.S. Code 5.22.b.(7):

    “Scotch whisky” is whisky which is a distinctive product of Scotland,
    manufactured in Scotland in compliance with the laws of the United Kingdom
    regulating the manufacture of Scotch whisky for consumption in the United
    Kingdom: Provided, That if such product is a mixture of whiskies, such mixture is
    “blended Scotch whisky” (Scotch whisky–a blend).

    Paragraph 8 is the same for Irish whisky, and paragraph 9 is the same for Canadian whisky. Why have these 3 countries been given special status, instead of applying this rule uniformly to ALL foreign-made whisky? Perhaps the law needs to be re-written or amended?

    • The Bitter Fig says:

      It’s clear that the existing regulations are outdated – the world of whisky is simply bigger today than it was 40ish years ago (it seems to the relevant statutes have 1969 as the date of the original legislation). It also is pretty clear that were it not for the exception carved out for Scotch whisky, you couldn’t call Scotch a Single Malt, due to that very same new oak barrels exception, as well as possible violations of the final distillation proof (no more than 160 proof). The fact that seemingly ingredient-based definitions include standards on aging method and distillation proof is somewhat odd and also ought to be changed.

      Which leads to the big question: should there be regulators at all? Sure, unless we want caramel-laden vodka being sold as whisky, and no doubt numerous other potential issues with other spirits, wines, and beers. However, we also need the regulators to have not only up-to-date regulations to follow (particularly with regard to world whiskies), but also competent and consistent staff.

  10. David D says:

    This is the same reason our barrel-aged gin is still sitting in the distillery rather than on our retail shelves. There is no such thing as whisky-gin according to the gov’t. Even though I’ve tasted it, it doesn’t exist.

  11. Brian Bradley (Brian 47126) says:

    “I am not aware of any distillery that can claim they use 100% barley, water and yeast produced in their own country other than ourselves”.

    I thought Kilchoman did this? I may be mistaken…

  12. Barry Jay says:

    Boy oh boy, don’t get me started. I’m sure all of us across the globe are just furious that our wonderful politicians have all this extra time to legislate liquor laws but not solve important issues like fiscal responsibility. Here are some of idiocies here in the USA.
    1 – In New Jersey, a liquor license is bid on and is limited in quantity. If a mom and pop restaurant want to serve wine, they would have to possibly buy a license (if one becomes available) for most likely close to one million dollars.. Bidding just started on one in the next town to me for $750,000.
    2 – In Pennsylvania, a liquor store can sell only by the case, you can’t buy single beers. To get a single you have to go to a bar and you most likely pay the price of a 6 pack in NJ. A six pack in a bar no doubt is close to the price of a case in NJ.
    3 – In some states (like Georgia) 14% ABV is max you can sell. No Dogfish World Wide Stout….but you can buy all the Whiskies and spirits that you want.
    More of the absurdly can be found here. http://en.wikipedia.org/wiki/List_of_alcohol_laws_of_the_United_States_by_state
    All of us, the majority who are responsible drinkers, should sleep well at night knowing that our politicians are doing their best to protect us!.

    • sam k says:

      Barry, a slight correction is in order. Liquor stores (state owned) in PA sell only wine and spirits, and are the only outlet where one can purchase those items for home use. They sell by the bottle or the case.

      Beer distributors can only sell beer by the case. Smaller units can be purchased at bars or six-pack shops. Prices at all levels can vary dramatically from place to place.

      Makes lots more sense now, doesn’t it? :-D

      • Barry Jay says:

        Thanks Sam…..I guess I should never complain here in NJ. The shops are privately owned, you can buy anything….and beer one bottle at a time. State owned stores. How freightning is that. . During my career at IBM, I’ve worked on city, state and federal contracts….and this one thing I know. You don’t want silly servants managing anything. Can’t wait until they get their hands on our heathcare.

    • Keith Sexton says:

      You don’t have to tell me. Welcome to New York State, where you can’t buy beer at a liquor store but you can get it at a gas station.

    • MrTH says:

      “2 – In Pennsylvania….”

      Don’t knock it. That’s why we have Malt Advocate.

  13. David OG says:

    So after reading most of the TTB regulations listed in 27 CFR 5.22 and 5.23, it seems that the TTB is in fact ignoring a clear regulatory exception for products of a distinct geographical origin. Despite what is mentioned in section (b.1.i) regarding the use of new charred oak barrels, a product of distinct geographical origin such that the place of origin is clearly indicated and that this type of spirit is distinct to that place should have no problem. It seems that labeling the product English Single Malt Whisky or adding clearly below the words “product of England” would fully satisfy this geographical designation exception as long as the product meets local regulatory standards. I’m no lawyer, but these like a very strong argument. Nonetheless, reading through our alcohol regulations is so mindbogglingly inane its clear that we have to work to get these regulations updated and streamlined for an industry that is now constantly changing. There are whole sections regarding “rock and rye” type drinks, but we can’t get the definition of single malt in there? Equally astounding is an entire section explicitly regulating the labeling of products referred to as “substandard brandy”, seriously who drinks/makes this stuff? It’s is an incredibly idiotic and outdated bit of regulation that stiffles a whole industry. It’s obvious that the powerful interests in this industry have no incentive to change the system as they’ve got what they need out of it. As consumers, critics, and professionals, we are in fact the most powerful participant here. Seriously, do we all drink to much to actually do something about this or are we just poorly organized? These are regulations decided by bureaucrats, not laws. I don’t think we need to get legislation passed to change these rules, just spend all of our free time bugging the TTB and they’ll eventually catch up to us!

  14. Jamie says:

    Politicians and diapers need to be changed often and for the same reason.

  15. I’ve posted the regs online at: http://www.thesmartset.com/article/article12031001.aspx

    Your web browser may render the regs in tiny type. All you need due is click on the regs image and the text will enlarge.

    The U.S. doesn’t define spirits in statute; it is all done through regs, so you’d think the TTB could go through the process of updating them without much bother. Clearly, they are archaic.

  16. As a follow-up: I don’t even see the term “single malt” in the regs.

    I’d love to see any sort of TTB documentation that has been supplied in this dispute!

    I can be reached at alcoholreviews@gmail.com

  17. This is not beauracracy. Just a retard sitting on his chair… somewhere…

    Steffen

  18. Wow and I thought that we had problems getting our whiskies into USA (and some other countries too) and as for our under 3 year old Spirit Drink products, don’t get me started.
    However some of the stories above and the references to various State idiosyncratic pieces of legislation are unbelievable. I commiserate with you all.

  19. Jean Donnay says:

    Thank you John for discussing this important problem.

    We are also quite concerned and worried by this situation, specially in being a really small structure.
    And don’t forget, we would also have to use 75 cl bottles instead of 70cl which are used in virtually all other countries, another serious difficulty if you use proprietary bottles as we do.

    Jean (“Glann ar Mor” distillery, Single Malt whisky from Brittany)

  20. I agree with you Jean. The requirement to bottle in 750ml, which is used only in 2 major markets, USA and South Africa, is expensive and also means that USA loses out in not having access to some products which are not bottled in this size.
    For instance our Manger’s Legacy range of single cask products are only sold in 700 ml size and so could not be imported into USA and similarly some of our Spirit Drinks products only come in 500 ml size, which again is a no, no for USA.
    Stuart

  21. Pat B says:

    Stop the madness! We need whisky professionals to concoct a model set of regulations that all of us enthusiasts out here could send to our congresscritters and demand that they propose legislation on. If we are persistent enough we might affect some change. John we look to you to start the ball rolling amongst your fellow writers and whiskey makers. I will write my senators and representatives to ask for some action. I am tired of trying to get spirits over the internet and risking confiscation. I need Greenspot at the local emporium! Please help!

  22. Brendan says:

    John, my favorite example of this silliness pertains to Glenfiddich 21 Gran Reserva, which I had in Scotland. It’s made in Scotland by Scotsmen, using Scottish water and grain, but finished in barrels that once held Cuban rum and thus, somehow, subject to the American trade embargo with Cuba.

    I have since seen the Gran Reserva in the US, with a label saying that it was finished in barrels that once held Carribean rum. Good for Glenfiddich, finding a way around this stupid rule.

    Sam and Barry, my favorite example is Weyerbacher Brewery in Easton, PA, where you can mix your own case of bottles – but you have to buy a case. You can spot the out-of-staters easily – they are the folks saying, “I only want ____ number of bottles.” Sorry, you can’t buy ____ number of bottles, you can only buy a case – can’t explain, don’t wait for it to make sense, it’s just that way.

    In Delaware, a company cannot sell alcohol for less than what it cost, so a brewery cannot give away beer, even for a charity event, and there’s no such thing as a free brewery tour. Oh, and that charity event? It needs a temporary liquor license and everyone working at the event needs the same state-run training and credential as someone who works in a bar.

  23. I think we should start a consumer organisation that supports small producers. We had similar problems in Denmark where the admistraion rules made it considerable harder to be a microbrewery than Carlsb*rg

    If we, as consumers, decided to support small producers there wouldn’t be many unemployed people around. And it would most likely increase the quality of what we purchase (and what we eat and drink more importantly)

    At Glasgow whisky festival I talked to balvenie about their 15yo single barrel range, and wondered about their ABV at 47.8%

    This was done purely for labeling reasons, and mainly because US was a PITA with regulations for every state (correct me if I am wrong)

    Now, Balvenie single barrel 15yo is an excellent whisky, so its not the best example, but if regulations has this effect on the “quality” of the final products, I think something is wrong. And its not whisky I am worried about (well abit, since its my main hobby). It’s about everything else I eat and drink, that I just don’t happen to have a clue about which unfair regulation they might be subjected to ??!!

    Steffen

  24. MrTH says:

    Lots of predictable politician- and regulation-bashing here…America’s favorite sport. Take a deep breath, everyone.

    Matt B. asked above: “Why have these 3 countries [UK, Ireland, Canada] been given special status, instead of applying this rule uniformly to ALL foreign-made whisky?”

    There is indeed a rule being applied to all foreign-made whisky, and it is the rule which applies to American-made whisky. This is the same anywhere–you can’t just call anything whisky, and sell it in another country in violation of their own trade definitions. Think Indian molasses-based “whiskies” trying to enter the UK market.

    These three countires have long-established distillation industries, and have successfully lobbied the US to recognize their traditional products, which are strictly regulated in their own countries. They are labeled and sold in the US as Scotch whisky, Irish whiskey, and Canadian whisky–distinctive and presumably well-defined products. The US in essence trusts these countries to regulate the production of these spirits.

    Obviously, whisky distillation is booming world-wide, and whisky is being made in many different countries. Most producers of what we would consider single-malt whisky have the good sense to adhere to the UK definition of same. But that’s not the US definition. I can well understand why the US would not allow in a product made in country A to the regulatory standards of country B but not to those of the US, despite the fact that there is an agreement to accept the products of country B.

    And as absurd as it sounds, the guy who said there is no such thing as Japanese whisky is correct–as a matter of US regulation, there is no such category. So Japanese whisky, to be imported into the US, apparently must meet US standards of production. As odd as this may sound to you, it’s probably true of pretty much any product imported to any country anywhere. The regs exist as much (or more) to protect the American industry as to protect consumers.

    So yes, it’s a problem, and because we care about whisky, it’s our problem. But it’s not that unusual–one hears of similar troubles all the time, especially regarding importation of traditional food products from various parts of the world. And yes, the wheels of regulation move very slowly, when they move at all. You can write your congressman if you like, but you have to realize this is not a front-burner issue for 99.9% of the American public. Imagine if they held hearings on the subject–no doubt someone would be saying, “While the sub-prime crime was percolating, Congress was holding hearings about steroids in baseball, Spygate, why Utah can’t be in the BCS championship, and the definition of whisky.”

    The only way forward that I can see would be the formation of an international association of whisky producers, which could lobby the US and other countries to accept its accreditation for members, the way the SWA does for Scotch whisky. Otherwise, it’s always going to be a country-by-country process, and small producers in countries without a large whisky industry simply won’t have the necessary clout to get anything done.

    • Louis says:

      MrTH, as the author of post #8 that you quoted, I would agree that Congressional hearings would be overkill. But it would make sense that it a certain type of whisky made in one country should be allowed from others as well when made exactly in the same manner. Meanwhile, Stranahans has gotten around that problem by calling their product Colorado Whiskey.

      So it wouldn’t be the end of the world if the EWC simply did the same thing and just used the ‘English Whisky’ designation. Whisky(e)y enthusiasts such as WDJK readers would understand what is going on, and the general public is mostly clueless about these things.

      • MrTH says:

        But there is no legal definition of what English whisky (or French whisky or Danish whisky) is. Therefore there can be no such designation.

        It might make sense to you and me that whisky made in accordance with Scottish single malt standards be allowed in as easily as single-malt Scotch, but it isn’t single-malt Scotch. It can’t be allowed in under the same provision, because it can’t be labeled as Scotch whisky, as all Scotch whisky must be.

        I’m not saying this is how it should be–just that there is logic to it, and it’s not as crazy as it might seem at first glance.

    • Jon W says:

      Mr.TH –
      I’m curious if you’re familiar with any of the background / logic behind the size restrictions (e.g not allowing 500ml or 750ml). That always seems to be the primary hangup for Scotch importers. It seems to be the type of law that may have made sense at some point in time and has perhaps become outdated.

      • MrTH says:

        It’s consumer protection (stop snickering!). When the industry went metric, the sizes were standardized so that the alcohol industry couldn’t do what the candy bar industry does–fiddle with the sizes to fool the consumer regarding comparative value. I agree that it would be better for us, as whisky lovers, to allow 700’s (as Canada does), but I’m also very sure that such a move would foster innumerable complaints from less knowledgeable consumers that they’re being ripped off. And let’s face it, there is in fact potential for abuse, i. e. charging the same price for a 700 as for a 750.

    • two-bit cowboy says:

      MrTH:

      I wrote my congresswoman and senators. I didn’t ask them to hold a hearing.

      I did ask them to contact the TTB on my behalf as a liquor retailer. The three of them won’t call or write the TTB, but the bulldogs who work for them take on these types of issues. Here’s wishing them good luck in their efforts.

    • David says:

      Mr. TH, you certainly presented some good points. You seem to be very knowledgeable about the spirit industry and the regulations.

      Regarding your comment “And as absurd as it sounds, the guy who said there is no such thing as Japanese whisky is correct–as a matter of US regulation, there is no such category. So Japanese whisky, to be imported into the US, apparently must meet US standards of production. ”

      Can you comment if one would to import Japanese whisky, which class, according to current TTB § 5.22, would it fall into? If it does not belong to any class, does it mean the law prohibit Japanese Whisky be imported into the US market? Is there other ways to label the Japanese Whiskies so that they can be imported? If so, how should they be labeled? Can they be simply labeled as “Japanese Whisky”?

      Does Japanese Whisky also have to be stored in oak containers to be called Whisky?

      Same questions would apply to other indigenous liquor products in other other countries worldwide, such as Chinese “Baijiu” (white liquor).

      Appreciate your comments.

    • David says:

      Mr. TH, you certainly presented some good points. You seem to be very knowledgeable about the spirit industry and the regulations.

      Regarding your comment “And as absurd as it sounds, the guy who said there is no such thing as Japanese whisky is correct–as a matter of US regulation, there is no such category. So Japanese whisky, to be imported into the US, apparently must meet US standards of production. ”

      Can you comment if one would to import Japanese whisky, which class according to TTB regulation § 5.22, would it fall into? If no class is appropriate, how should it be labeled? Can it be simply labeled as “Japanese Whisky”?

      Does Japanese Whisky also have to be stored in oak containers to be called Whisky?

      Same questions would apply to other indigenous liquor products in other other countries worldwide, such as Chinese “Baijiu” (white liquor).

      Appreciate your comments.

  25. […] Hansell also has an interesting post outlining some of the insane regulations that keeps whisky companies from importing their goods to the […]

  26. Gal Granov says:

    The USA is a freaking crazy place.
    Israel, is no less.

  27. Jason R says:

    This country is so backwards sometime

  28. Omar says:

    It seems America and Great Britain make enjoying whisky a right pain in the you know what. They don’t seem to like other countries importing their whisky either. I wouldn’t be surprised if the secret service came knocking on my door to confiscate my malts and bourbons.

  29. Rick H says:

    Good discussion. MrTH has some good points about “why” things are the way they are, but you all are correct that they should be reviewed periodically and changed. The world of single malt whisk(e)y has changed dramatically since the 1960s. It’s not just 1% of Scotch production and essentially nothing else anymore.

    The US itself has a problem. Defining “malt” by the type of barrel is wrong, no matter how you slice it. Malt refers to malted cereal grains — in this case, almost always barley but Anchor has a 100% malted rye whiskey. This bizarre definition has stifled distilleries trying to emulate a Single Malt Whisky. It’s like our entire whiskey regulation set is based upon Bourbon. And it probably is. But Bourbon isn’t single malt whisky. Bourbon is bourbon. If we change our definition of “single malt whisky” to match what the rest of the world is using – look at the fantastic whiskies being produced in Brittany, Sweden, Wales, India, Japan, England, and even Spain – we can inspire growth in our OWN industry as well as allow our citizens access to a wider range of product.

    Don’t even get me started on metric. It’s high time we get off our collective arses and make the switch. But until that happens we should allow international standard sizes and even adopt them for US production in industries that are heavily influenced or dominated by international product.

  30. Hi John, I would just love to get my malts into your country but they make it so so hard.
    Just had a package of 4 bottles bound up with the dreaded green “US Customs and Border Protection” tape returned with a not telling me it was an illegal importation.
    I export my malts to most other countries in the world with very little difficulty.
    Hm we seem to have a problem here.

    • John Hansell says:

      And we would love to have your malts here too. Sounds like you need to hook up with an importer who can help you get through the red tape? But even then, I’m sure there will still be hurdles to jump.

  31. James says:

    Wow John,

    Here in the UK I am generally impressed by the range and the value of what you guys get in the US. Thanks for introducing this issue to us.

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