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Hedmans Brorsa
07-04-2004, 10:07
I donīt know, this might very well rank amongst the most stupid questions ever asked on this forum but I have to ask anyway.

What if someone in, say Oklahoma, decided to produce whiskey using the Lincoln county process. What would that whiskey be called? Surely not bourbon, since the LCP is used to distinguish Tennessee from bourbon. To call it Tenneesse whiskey (or even Oklahoma Tennessee whiskey) would seem absurd.

Or is the Lincoln county process prohibited outside of Tennessee? That also sounds a bit far-fetched to me.

Best wishes,

H.B.

TNbourbon
07-04-2004, 12:01
The Lincoln County Process is simply the name for the charcoal mellowing that Jack Daniel's and George Dickel use in their whisk(e)y. It is not patented -- both companies use it -- so I can think of no reason it cannot be used elsewhere. (Moore County, where JD is located, was a part of neighboring Lincoln County when the practice was originated.)
However, Tennessee Whiskey is a designation ensconced in federal regulation/law, so IT cannot be produced outside Tennessee, at least under that name.
Bourbon, however, doesn't have to be -- and hasn't always been -- solely made in Kentucky, and a debate has taken place, at times, even in these forums, whether the Lincoln County Process mellowing negates the designation of bourbon. Prior to its presentation to the charcoal, JD and Dickel are, in fact, consistent with bourbon.
So, your hypothetical Oklahoma distiller might just try calling it bourbon, and see what results.

ratcheer
07-04-2004, 18:49
I'm not going to dredge it all up again, but I have cited Kentucky Straight Bourbon whiskies that proclaim themselves to be "Charcoal Mellowed" or some such similar phrases. One example that immediately comes to mind is the very cheap and very much not recommended Virgin Bourbon. But, I believe there are others.

This may or may not be identical to "the Lincoln County process", but I doubt there is enough difference to make a difference.

Tim

angelshare
07-05-2004, 04:55
I searched the site and turned up a couple of preceding exchanges on this subject. At the risk of flogging a dead horse, I am still left with the following questions:

1) When a bourbon is described as "charcoal mellowed" or something similar, I just assumed that was a dubious marketing term to describe the almost universal filtering to remove chill haze. Not so?

2) Is there a bourbon that is filtered with something other than activated charcoal, something more likely to impart a flavor?

I had never heard of Virgin Bourbon before (great name), but I got the impression in searching that it is bottled by Heaven Hill. If so, maybe Bettye Jo could tell us what "Charcoal Mellowed" means for that brand.

Once again, sorry if my search skills are lacking.

Paradox
07-05-2004, 06:59
1) When a bourbon is described as "charcoal mellowed" or something similar, I just assumed that was a dubious marketing term to describe the almost universal filtering to remove chill haze. Not so?




I thought they tried to sell off the process of "charcoal mellowing" as one that would remove impurities and make for a smoother more mellow flavored end product. I think it's just another gimmik that can be used to try and market ones product...



2) Is there a bourbon that is filtered with something other than activated charcoal, something more likely to impart a flavor?



I want to think that I remember seeing others, but I can't remember them now... The only one that did pop into my head right away is McKendricks 'Western Style' Whiskey. It says it is aged in new oak barrels and then mellowed in mesquite to add its unique taste and character. I've had it and let me tell you, the mesquite flavor stands out! I guess its a like it or hate it thing as I found it to be a bit too much for me.
http://www.liquorama.net/ProductImages/WestOn.jpg http://www.liquorama.net/ProductImages/LongOn.jpg



I had never heard of Virgin Bourbon before (great name), but I got the impression in searching that it is bottled by Heaven Hill. If so, maybe Bettye Jo could tell us what "Charcoal Mellowed" means for that brand.




I've got the 21yo version of Virgin bourbon. There's a pic on my website and here it is: http://home.si.rr.com/paradox7/Virgin21.JPG


They make other aged Virgin products as well. I know a 15, and I think a 10 or 7, maybe both. All are charcoal mellowed. This product is for export... Also, another charcoal filtered bourbon is Jim Beam Beam's Choice in the green label. Another charcoal filtered bourbon (which appears to be made by HH as well) is Military Special. I'll attatch some photos of these as well.

Hedmans Brorsa
07-05-2004, 10:18
Thanks a lot for the info. I, too, assumed that "Charcoal mellowed" written on a bourbon label meant something that was done after the aging process - something like chill filtration.

Another phenomenon that has racked my brain several times is the proper definition of "straight". While straight almost always is used in conjunction with bourbon or rye it is wholly absent from (the admittedly few) Tennessee bottles in my collection. Does this imply something?

Another example is that odd Indiana bourbon which I eventually managed to lay my hands on earlier this year : Sam Cougar black. Again the word "straight" is absent - instead the label claims it somewhat confusingly to be "Authentic Kentucky style bourbon whiskey". What to make of this? Could it possibly be the low proof (74 %) that makes it non-straight?

Best wishes,

H.B.

TNbourbon
07-05-2004, 10:39
Tennessee whiskey -- Jack Daniel's and George Dickel -- are, indeed, 'straight' whiskeys. Why they don't say so on the bottles is a mystery.
Straight whiskey must be 1) distilled out at less than 80% (160 proof) abv; 2) aged a minimum of 2 years in new charred oak barrels, and carry an age statement if bottled at less than 4 years old; and 3) contain no added coloring or flavoring.
There are straight bourbons, straight Tennessee whiskeys, and straight ryes.

A note about the charcoal filtering noted on some bourbon brands: I believe, in the case of these bourbons -- and unlike Tennessee whiskey (except for Gentleman Jack, where it is a second filtration) -- the filtering is done after aging and before bottling. Conversely, all Tennessee whisk(e)y is (maple)-filtered before aging.

angelshare
07-05-2004, 16:12
Thanks for posting the pix!

Boy, the Miltary Special label certainly implies filtering before putting it in the barrel if you look at the sequence in the description.

I had forgotten about McKendrick's. I wasn't too keen on it, but it was different all right. Then again, at least it is not labelled "bourbon," right?

Paradox
07-05-2004, 16:31
No problem Dave. It must be a disease, but I like posting pics whenever possible to visually convey things as well as simple writing.

I didn't even think about it like that; The way in which they list the sequence of events on the side of the bottle...

Tonya and Ben said that they really like the McKendricks for cooking and bbq'ing if I recall. I haven't tried it in cooking yet, but after drinking a bit I can see how it would be great in aiding the marinading of steaks and such.

cowdery
07-05-2004, 19:32
JD and GD can't call themselves "straights" because the "straight" designation is only available to the specified named types, e.g., bourbon, rye, wheat, corn, etc.

"Tennessee Whiskey" is not defined in the Code of Federal Regulations. The only official recognition of the term is a letter solicited by then Jack Daniel's president Reagor Motlow from the Treasury Department, acknowledging that Tennessee Whiskey is distinct from bourbon.

I don't know of any distillery in the U.S. except the two in Tennessee that has the facilities to perform the "Lincoln County Process." The charcoal filtering performed in Kentucky is the type intended to eliminate chill haze or perhaps something using a bit more charcoal, but well short of what JD and GD use.

What is called the "Lincoln Country Process" is a common 19th century rectification technique, i.e., processing whiskey through large stands of charcoal to remove congeners prior to barreling. Bone dust was also used. The exclusive use of sugar maple wood appears to be the one unique feature of the Tennessee practice. I have often heard the term "leaching" used to distinguish this process from the filtering most producers do, but the people using that term have an axe to grind (i.e., they make bourbon).

Could a whiskey that meets all of the requirements for bourbon be called bourbon if it also is subjected to a leaching step such as described above? There is an argument to be made that the answer would be no, but my reading of the regulations says the correct answer is yes.

If you want to read the regs for yourself, follow the links to the ATF site from my links page. (http://cowdery.home.netcom.com/bour5.html)

angelshare
07-06-2004, 04:58
The charcoal filtering performed in Kentucky is the type intended to eliminate chill haze or perhaps something using a bit more charcoal, but well short of what JD and GD use.



Regarding Beam's Choice - does Beam use a unique "mellowing" pocess for that brand, or is it all part of the marketing?

As always, thanks for the wealth of info, Chuck. I can hardly wait for your book to take it's rightful place of prominence among our whiskey references. I wonder when that day will come....? (hint hint) http://www.straightbourbon.com/forums/images/graemlins/grin.gif

Hedmans Brorsa
07-06-2004, 05:46
I don't know of any distillery in the U.S. except the two in Tennessee that has the facilities to perform the "Lincoln County Process."

Exactly what I thought! Although I havenīt (yet) visited J.D. or Dickel you get a feeling that it is a relatively spacey process. Surely, any visitor to a bourbon distillery would have noticed such an operation?

JD and GD can't call themselves "straights" because the "straight" designation is only available to the specified named types, e.g., bourbon, rye, wheat, corn, etc.

Arenīt there, then, any obligations associated with the label "Tennesse whisk(e)y"? My very first thought was that "straight" was sort of in-built within the Tennessee definition - that is, a whiskey that didnīt live up to to the "straight" requirements couldnīt call itself Tennessee whiskey either.

What contradicts this, though, is that semi-legendary whiskey "Lem Motlow". Now, I have never seen this (and probably never will) but from labels found on the Internet you can clearly see that the label reads "Tennessee sour mash whiskey". If I have the correct information this whiskey was not older than one year. So the question remains : how do I know if a Tennesse whiskey is the real thing?

cowdery
07-06-2004, 09:58
I believe, but can't say for sure, that Beam realized there was charcoal in their processing and so they could truthfully say "charcoal mellowed" on their label, for whatever good it would do. They may actually perform a similar leaching process. I can't say for sure one way or the other, but if they do something similar to JD, I suspect it is on a smaller scale.

Start saving your pennies, kiddies. You could have "the book" inside the month. I'm trying to get it finished rather than talking about it, but I'll start talking about it very soon.

cowdery
07-06-2004, 10:06
The word "whiskey" has a legal meaning, but it is not very restrictive. Use of "Tennessee" is controlled only in the sense that a false advertising claim could be made against someone who manufactures "Tennessee Whiskey" somewhere else, but it might be an interesting case as someone would have to explain "Kentucky Fried Chicken" to make it. The words "sour mash" do not appear in the CFR. In other words, the only word on the JD or GD label that is regulated by the feds is "whiskey" and that covers a multitude of sins (e.g., Seagrams Seven Crown).

bobbyc
07-06-2004, 11:04
I have this document on my computer , but it is a file I can't attach. I have read all this about the Lincoln County Process etc. I didn't feel the need to add anything , one way or another. I decided to type this in, hope it helps.


184 Jack Daniels Legacy

Office of
Commissioner of Internal Revenue

Treasury Department
Washington
March 28,1941


Jack Daniel Distillery,
Lynchburg, Tennessee.
Sirs:

Reference is made to the Bureau ( Alcohol Tax Unit) letter of January 28, 1941,realtive to the labeling of your " Jack Daniels Old Time Distillery No.7 Brand"Whiskey and to the recent visit to the Bureau offices of your Mr.Reagor Motlow, at which time various samples of your products were submitted for analysis and an explanation of your distilling and leaching processes were presented.

The Bureau Laboratory has analyzed the samples submitted and has given careful consideration to the description of your manufacturing process. In view of the nature of this process and of the results of the analyses, it has been concluded that the whiskey in question has niether the characteristics of bourbon or rye whiskey but rather a distinctive product which may be labeled whiskey. Accordingly, no objection will be interposed to the continued use of the brand label which was the subject of the Bureau's letter of January 28,1941.

Respectfully,
Stewart Berkshire
Deputy Commissioner

In 1941, after resumption of production and distribution of whiskey by the Jack Daniel Distillery at Lynchburg, Tenn., the Federal Alcohol Tax Unit questioned the right of the distillery to use the simple brand name " Whiskey" without defining it as a bourbon, which the Unit officals believed it to be.The Jack Daniel Distillery claimed its unusual processes, especially the leaching through pulverized sugar maple charcoal, made it a whiskey that is individual, and not bourbon. This letter shows how the matter was finalized--with the federal officals approving the Jack Daniels label.

Read and enjoy , It's a page out of someones book,I don't have permission or the source. I'll delete this in a few days.

bobbyc
07-06-2004, 12:14
Is there a bourbon that is filtered with something other than activated charcoal, something more likely to impart a flavor?



4 roses single barrel is filtered thru a series of round filter pads that look like compressed felt. Don't know what it does to the flavor but there is a tendency to " Strip" color from the bourbon. Occasionally they will get a barrel that is a bit lighter in color than the others and they can run it thru at the end of the filter pads life and not lose color and still accomplish what they are looking for. The pads have a short life, if I recall correctly 3 or 4 barrels.

tdelling
07-06-2004, 13:15
> Read and enjoy , It's a page out of someones book,I don't have permission
> or the source. I'll delete this in a few days.

I Am Not A Lawyer, but...

I think you have the right to quote this letter and the commentary that
follows under the legal principle of "fair use". You are allowed to
re-print excerpts of copyrignted works, with absolutely no permission
required, for the purpose of commentary, criticism, parody, etc.
See, for instance,
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html


Additionally, the letter itself was written as part of US Government
business, and thus cannot be copyrighted.

Tim Dellinger

bobbyc
07-06-2004, 13:41
Alrrighty then, I'll leave it alone for now. Thanks!

chasking
10-01-2004, 10:12
I am very very happy to have found this thread, and finally an answer of sorts to the question, "What (legally) is 'Tennessee Whiskey'?" I tried researching that question through standard legal resources and couldn't come up with anything. It is good to finally see the letter posted above, which explains the source of the designation.

However, it raises at least one question, which is, was the regulatory framework regarding what was whiskey, and what was bourbon, back in 1941 the same as it is today? If not, the big question becomes, would the reasoning in that letter still apply today? While JD and GD are certainly distinctive, my personal feeling is that they still fall on a continuum with (acknowledged) bourbons. I note that in another thread here somewhere there is a quote from a modern draft trade treaty which defines Tennessee whiskey as bourbon produced in Tennessee.

If no one knows about the history of the regulations off the top of his or her head, I will try to do some digging on it. I think it is an interesting question.

cowdery
10-01-2004, 12:03
was the regulatory framework regarding what was whiskey, and what was bourbon, back in 1941 the same as it is today?



Yes. The identity standards have not changed significantly since they were first adopted after the repeal of Prohibition.

The letter reproduced by Bobby was lobbied for by the Jack Daniel's company. The letter stands on its own. I can't vouch for the commentary that follows it, though it is pretty consistent with my understanding of the history. However, I find it hard to believe the Alcohol Tax Unit was trying to force Daniel's to use the term "bourbon" when they didn't want to. There is an identity standard for "whiskey" and it is pretty loose. The purpose of the standards is to prevent someone from using the word "bourbon" to describe a product that does not qualify for that designation. I would have to read the standards a little more closely to see if there is any basis in the regulations for requiring a bourbon to call itself bourbon. I don't think there is, but check it out for yourself. The cite is 27cfr5.21.

What the Motlows wanted, and got, was some sort of official recognition of Tennessee Whiskey as a distinctive style. This allows Daniel's to say, as they do to this day, that Tennessee Whiskey is recognized by the federal government as a distinctive style of whiskey, different from bourbon, despite the fact that the words "Tennessee whiskey" do not appear in the federal regulations themselves.

I don't know what draft treaty you are referring to, but the distinctive national products clauses in NAFTA and our agreement with the EU on the subject both identify "bourbon whiskey" and "Tennessee whiskey" and recognize both as distictive products of the USA.

Many commentators have interpreted all this as the Lincoln Country Process disqualifying Tennessee Whiskey from the legal right to be called bourbon. I don't agree. Both Jack Daniel's and George Dickel meet all of the requirements for bourbon and I don't see any reason why the Lincoln County process would negate that. If for some strange and unlikely reason it became desirable for either brand to label itself as bourbon I believe they could.

There is, by the way, a detailed article by Lew Bryson about the process itself in the current issue of Malt Advocate, but it doesn't discuss any of these legal questions.

boone
10-01-2004, 12:42
If for some strange and unlikely reason it became desirable for either brand to label itself as bourbon I believe they could.





Right AGAIN, Chuck http://www.straightbourbon.com/forums/images/graemlins/grin.gif

A good while back, I had a very lengthy conversation with alot of folks "in the know" in this industry. I flat out asked them, is Jack Daniels, BOURBON?...The answer (straight up) <font color="red"> Yes, Jack Daniels is bourbon </font> The conversation then led to the statement, "If, Jack Daniels chose to put the word bourbon on their label...they could...but they choose not to".

http://www.straightbourbon.com/forums/images/graemlins/grin.gif http://www.straightbourbon.com/forums/images/graemlins/grin.gif Bettye Jo http://www.straightbourbon.com/forums/images/graemlins/grin.gif http://www.straightbourbon.com/forums/images/graemlins/grin.gif

tdelling
10-01-2004, 12:49
&gt; There is, by the way, a detailed article by Lew Bryson about the process itself
&gt; in the current issue of Malt Advocate, but it doesn't discuss any of these
&gt; legal questions.

I was really pleasantly surprised by this article. There is Actual Technical
Detail in the article! I loved it! Such articles are usually unsatisfying
for the engineer/geek/technically minded... but this one was deliciously
detailed in terms of the process and what actually goes on. Bravo to Bryson!

Tim Dellinger

chasking
10-01-2004, 13:05
I don't know what draft treaty you are referring to...



I found it in Post #24218 (http://www.straightbourbon.com/ubbthreads/showflat.php?Cat=&amp;Board=other&amp;Number=24218&amp;Forum=A ll_Forums&amp;Words=americas&amp;Match=Entire%20Phrase&amp;Sea rchpage=0&amp;Limit=25&amp;Old=allposts&amp;Main=23960&amp;Search= true#Post24218).

cowdery
10-01-2004, 14:03
Very interesting. Thanks. I missed that the first time around but, luckily, it supports my point.

cowdery
10-01-2004, 14:06
I had a similar reaction. Lew did what you have to do, which is go there and talk to the people who actually do the work. I agree. Good for him.

You would have loved the tour Jerry Summers gave us of Jim Beam. Thanks again to Bobby Cox for that.

chasking
10-01-2004, 14:10
Intrigued, I pulled up the current version of the 27 CFR 5 regs from a legal web site (latest revision: April '04) and as I read them, it is at least possible that the Tennessee whiskies should be required to state that they are bourbons on their labels. Consider: Section 5.22 provides (in relevant part) (yes, I am a lawyer):

<font color="blue">(b) Class 2; whisky. ``Whisky'' is an alcoholic distillate from a fermented mash of grain produced at less than 190[deg] proof in such manner that the distillate possesses the taste, aroma, and characteristics generally attributed to whisky, stored in oak containers (except that corn whisky need not be so stored), and bottled at not less
than 80[deg] proof, and also includes mixtures of such distillates for which no specific standards of identity are prescribed.
(1)(i) ``Bourbon whisky'', ``rye whisky'', ``wheat whisky'', ``malt whisky'', or ``rye malt whisky'' is whisky produced at not exceeding 160[deg] proof from a fermented mash of not less than 51 percent corn, rye, wheat, malted barley, or malted rye grain, respectively, and stored
at not more than 125[deg] proof in charred new oak containers....</font>

It sounds from other posts I've read here, and also from the JD letter, like perhaps at some point in the past a whiskey's designation as bourbon depended on the whiskey having the "taste, aroma, and characteristics generally attributed to" bourbon. But, under the current regs, the "taste, aroma, and characteristics" test is applied only to determine whether something is whiskey. When it comes to determining whether something is bourbon, it is the very mechanical test given in the next paragraph. If the whiskey meets those criteria, it is a bourbon.

There is of course the theory that the "Lincoln County process", by adding flavors to the whiskey, takes it out of the bourbon category. I'm not so sure that is supportable under the current regs. The "flavoring" reg is section 5.23(a)(1), which provides:

<font color="blue">The addition of any coloring, flavoring, or blending materials to any class and type of distilled spirits, except as otherwise provided in this section, alters the class and type thereof and the product shall be appropriately redesignated.</font>

But, "redesignated" to what? Consider this provision of Section 5.22:

<font color="blue">(i) Class 9; flavored brandy, flavored gin, flavored rum, flavored vodka, and flavored whisky. ``Flavored brandy, ``flavored gin,'' ``flavored rum,'' ``flavored vodka,'' and ``flavored whisky,'' are brandy, gin, rum vodka, and whisky, respectively, to which have been added natural flavoring materials, with or without the addition of sugar, and bottled at not less than 60[deg] proof. The name of the predominant flavor shall appear as a part of the designation.</font>

If the Lincoln County process adds flavor, such that the whiskey must be redesignated (i.e., is no longer bourbon), then it appears that under the foregoing section it would have to be redesignated "charcoal flavored whiskey" or "maple flavored whiskey" or something to that effect.

In conjunction with the foregoing regs, consider that under Section 5.35(a),

<font color="blue">Designation of product. The class and type of distilled spirits shall be stated in conformity with Sec. 5.22 if defined therein.</font>

So if a Tennessee whiskey is, by the Section 5.22 definition, a bourbon, then it would have to be labeled as such.

I can think of two ways that the Tennessee whiskeys could exclude themselves from the definition of bourbon: distill at higher than than 160 proof, or barrel at higher than 125 proof. If they were barrelled at 127 proof, for instance, they would not technically fit the definition of bourbon, although the effect would certainly be the same. Does anyone know if they do this? They could also avoid being classified as bourbon by refilling casks. My understanding is that the Tennessee distillers use new casks. However, mixing a small amount of whiskey from a refill cask in with the regular production, while it would probably not alter the character of the final product, would preclude labelling that product as bourbon.

I suppose that, notwithstanding the discussion of flavoring, there is still the argument that the Lincoln County process adds coloring. Addition of coloring also requires reclassification, although to what is less clear. This one seems a bit far-fetched to me, inasmuch as most whiskey encounters charred wood and gains color therefrom.

cowdery
10-01-2004, 14:34
The Lincoln County process would not be considered "The addition of any coloring, flavoring, or blending materials." It is a process that removes or alters flavor, but it is not an additive in any sense. This, however, is the issue with "finishes" such as Beam used with Distiller's Masterpiece, although it hasn't really been put to the test. The regs pretty clearly contemplate the "addition" of a "material," which aging in barrels that contain residues of sherry or port may or may not be, but which charcoal filtering certainly is not.

The matter you discuss also has never really been tested. I would argue that all you are really required to do is identify the spirit by general type, i.e., whiskey, rum, tequila, liqueur, brandy, etc. The standards for the narrower classifications of whiskey--rye, bourbon, straight, etc.--were put in place to prevent producers from using those terms to identify products that did not meet those standards. I would go back to the legislative history showing that and argue that they were never intended to require a product to use the narrower classification if it was qualified to do so.

The bottom line is that the question hasn't really been answered through administrative law determination or litigation, so we're all speculating.

As for your questions about whether or not the Tennessee whiskies fail to meet the proof of distillation or proof of entry requirements, I can assure you they do meet them. That, in part, is the curious point. The Tennessee producers have strictly adherred to all the requirements for the straight bourbon designation yet choose not to use it.

Part of the lesson here, I think, is that the federal regulations are not the end all and be all. They were put in place to solve a problem and largely did solve it.

An interesting question this all raises is as follows. I start a distillery here in Chicago and make a product that conforms to the legal standards for "whiskey." It does not, however, conform to the standards for "straight bourbon whiskey." Is there anything that would legally prevent me from calling my product "Tennessee Sour Mash Whiskey"?

chasking
10-01-2004, 14:58
Regarding whether you could call your Chicago-distilled product Tennessee Sour Mash Whiskey, there are the following provision in Section 5.22(k):

<font color="blue">(1) Geographical names for distinctive types of distilled spirits...shall not be applied to distilled spirits produced in any other place than the particular region indicated by the name, unless (i) in direct conjunction with the name there appears the word "type" or the word "American" or some other adjective indicating the true place of production, in lettering substantially as conspicuous as such name, and (ii) the distilled spirits to which the name is applied conform to the distilled spirits of that particular region. ... Geographical names for distinctive types of distilled spirits shall be used to designate only distilled spirits conforming to the standard of identity, if any, for such type specified in this section, or if no such standard is so specified, then in accordance with the trade understanding of that distinctive type.</font>

In this context, the question is whether "Tennessee whiskey" is a "distinctive" type. Given the disparity in character between JD and Dickel, it might be tough for them to argue that they are sufficiently like each other and simultaneously different from bourbon to qualify as a "distinctive type of distilled spirit". If they do, you could at least call your product "Tennessee Style Sour Mash Whiskey".

Ironically, if Tennessee whiskey is not a "distinctive style", then you couldn't use the name at all, based on another provision of Section 5.22(k):

<font color="blue"> (3) Geographical names that are not names for distinctive types of distilled spirits, and that have not become generic, shall not be applied to distilled spirits produced in any other place than the particular place or region indicated in the name.</font>

Are you starting up a distillery here in Chicago? I'll work there!

cowdery
10-01-2004, 15:08
I'm not starting a distillery, but you're doing a great job as a research assistant.

"Whiskey" is a distinctive type, though not geographical. "Cognac" is an example of a distinctive type of spirit based on a geographical place name. "Tennessee" as a modifier for "whiskey" is not codified in the regs, so the "distinctive type" wording would not apply, but the wording you cite for Section 5.22(k)(3) would apply and prevent me from labeling my Chicago product as "Tennessee Whiskey." In addition, there are truth in advertising laws, independent of the alcohol regs, that probably could be used against me too.

tdelling
10-01-2004, 15:42
&gt; You would have loved the tour Jerry Summers gave us of Jim Beam.

Unfortunately, my sister decided to get married on the weekend of
the Bourbon Festival. I can't fault her timing though... she managed
to dodge Charley, Frances, Ivan, and Jeanne.

As always... "perhaps next year".

Tim Dellinger

Gillman
10-02-2004, 06:46
The 1941 letter refers to testing and analysis of the product with the conclusion Jack Daniel's is not bourbon or rye whiskey. To me, this implies the agency found something in the product which disqualified it from being bourbon or rye. If the regulations defining the types of whiskey were the same in 1941 as now, and if something that is legally bourbon must be so styled on the label, this must mean there is something in Jack Daniels that does not conform to the definition of bourbon and rye. I theorise this could be extracts from the combusted maple wood the white dog spends some days (not just a few hours) leaching through. Perhaps residual maple sap enters the product. True, saps might come in to bourbon from charred oak containers but the regulations allow, indeed require, aging in new oak wood containers. I think a reasonable interpretation would encompass a subsequent filtration through oak-derived charcoal (for any bourbons which undergo that treatment). A neutral filter (the pad type decribed recently for filtering Four Roses Single Barrel, and possibly any deactivated charcoal) obviously adds nothing to the spirit and is neither here nor there in terms of flavor.

Now, if a whiskey to which maple wood derivatives are added must be redesignated, perhaps the very word, "Tennessee", supplies this need. Tennessee would mean, not (or not only) where the whiskey is made, but the style of whiskey it is (that which undergoes a preliminary maple wood charcoal leaching). On the other hand, perhaps Stewart Berkshire was saying in a polite governmental way that he tasted Jack (not chemically analysed it) and it doesn't taste like any bourbon he knows, hence it's distinctive. But if he was not referring to taste, or only to taste, but rather to what came out of the agency's physical analysis, what was it that made him think it wasn't bourbon or rye? I cannot think of anything other than maple wood derivatives. I note George Dickel's whiskey also states, "Tennessee" on the label; it too undergoes the maple charcoal leaching, so a similar logic might apply here too..

In sum, it seems to me either something must be "added" to these whiskeys (I surmise, maple wood extracts) to take them out of the definition of bourbon and rye or they ARE legally bourbon yet are not required so to state on the label. The latter possibility seems ruled out however by the regulation referred to earlier in the thread requiring that a defined whiskey type must be declared (on the bottle) by the maker. Unless, possibly, the rules mean it is sufficient to use the name of a set (whiskey) and not the subset (bourbon) to style the product.

I have not reviewed the regs in full but offer these thoughts after reading the last few posts.

Gary

Gillman
10-02-2004, 07:20
From Mark Waymack's and James Harris', "The Book of Classic American Whiskeys" (published 1995):

"As dramatic a spectacle as the firing is [of split maple logs at Jack Daniels], it is not a complete process of combustion. Some of the sugars in the wood remain in the charcoal and are partly reponsible for the distinctive flavor of the Jack Daniel's products".

Gary

boone
10-02-2004, 10:06
I didn't jump on this bandwagon "earlier"---cause it's a never-ending circle.

I will make one more reply and let the rest of ya hammer on http://www.straightbourbon.com/forums/images/graemlins/grin.gif http://www.straightbourbon.com/forums/images/graemlins/grin.gif I do enjoy reading this stuff...and usually learn alot from everyone's opinions...

I made my information known to let folks know what has been said in the inner circle.

Before "both" filterings http://www.straightbourbon.com/forums/images/graemlins/grin.gif It has met all the legal requirements to be called Sour Mash Bourbon.

Hmmmmmmmm...Both (JD &amp; Other famous Bourbon's) proceed with their filterings...Then...one becomes a bourbon and the other not a bourbon?

Jack Daniels, states that it is "NOT BOURBON". It's Tennessee Whiskey http://www.straightbourbon.com/forums/images/graemlins/grin.gif

http://www.straightbourbon.com/forums/images/graemlins/grin.gif It's their trademark http://www.straightbourbon.com/forums/images/graemlins/grin.gif

Hmmmmmmmm...Maybe the question should have started out as...Is Jack Daniels "technically" Bourbon? http://www.straightbourbon.com/forums/images/graemlins/grin.gif

I'm done http://www.straightbourbon.com/forums/images/graemlins/grin.gif

http://www.straightbourbon.com/forums/images/graemlins/grin.gif http://www.straightbourbon.com/forums/images/graemlins/grin.gif Bettye Jo http://www.straightbourbon.com/forums/images/graemlins/grin.gif http://www.straightbourbon.com/forums/images/graemlins/grin.gif

Gillman
10-02-2004, 10:20
I think there are two questions Bettye Jo:

(i) is JD technically (under legal definition) a bourbon? You are saying it is, but I am wondering if the JD method of leaching may mean it isn't one;

(ii) assuming you are right that it is technically a bourbon, why doesn't the company have to say it is a bourbon on the label?

Gary

musher
10-02-2004, 10:59
To me, the question is whether or not JD's 'filtering' is merely that, or is an additive process. I would argue that it is and additive process, since you ultimately end up with more in the whiskey than before the 'filtering', both in color and flavor.

pepcycle
10-02-2004, 11:33
Filtering vs Mellowing
I believe that filtering, by definition, does not add, but is intended to remove something. Most bourbons are chill filtered. No question this does not disqualify them as bourbon. Mellowing, on the other hand, is nebulous enough to indicate that something might be added or changed and borders in that gray area of additive/modification.
For my purposes, the mellowing changes the product and its not bourbon, and I don't really need it to be bourbon. I think that Brown-Forman is pompous enough to NOT WANT TO BE BOURBON, but be unique as a Tennessee Whiskey to differentiate it in the market. Are there more bourbons or TN whiskeys? Do JD drinkers perceive that as a plus. I think so. So technical definitions aside, $ prevail.
http://www.straightbourbon.com/forums/images/graemlins/soapbox.gif

tdelling
10-02-2004, 11:59
&gt; (ii) assuming you are right that it is technically a bourbon, why doesn't the
&gt; company have to say it is a bourbon on the label?

Just because you can doesn't mean that you have to. Not all straight bourbons
use the word straight... they can, if they wanted to, but they don't choose to.
Similarly, my reading of the regulations is that all bourbons could be bottled
as, e.g. Jim Beam Whiskey, Wild Turkey Whiskey, Elijah Craig Whiskey, etc.
since they are whiskies.

Tim Dellinger

Gillman
10-02-2004, 12:20
But that is the question, does the product, if a "bourbon", have to be called that on the label? That is a legal question. The answer is yes, no, or maybe, it has to be one of those three, but I am not sure which it is. Brown-Forman would know, of course. If the answer is maybe (i.e. the issue is a gray area), effectively the answer is no if Brown-Forman does not wish to use the term on the label.

Gary

cowdery
10-02-2004, 13:44
The first part of his statement is true. Complete combustion would leave ash, not charcoal. As for the second part, I guess one of our scientists needs to tell us: "what is charcoal?" One could easily argue that nothing happens in the leaching process that doesn't happen in the barrel when the whiskey interfaces with the barrel char. The only difference is that the charcoal is maple while the barrel is oak.

cowdery
10-02-2004, 14:01
The answer is yes, no, or maybe, it has to be one of those three, but I am not sure which it is.



The answer truly is "maybe," because it really hasn't been put to the test. Remember, the 1941 letter, which is the only legally relevant decision that has been made on the subject, is not absolutely dispositive of the central question. It was sought by Motlow so he could say that the federal government acknowledged Tennessee Whiskey as a distinctive style. He did not ask for, nor does the letter say, that if Jack Daniel's--as currently made--applied for permission to call itself "bourbon" on the label, that request would be denied. The only way to answer this question definitively would be for a Tennessee Whiskey using the Lincoln Country Process and otherwise complying with all the requirements for bourbon, as Jack Daniel's does, to apply for permission to call itself "bourbon."

Besides, in law, isn't the right answer for a hypothetical almost always "maybe"?

There is an intra-industry political side to all this too. In earlier days, and even in 1941, "bourbon" was not the end-all and be-all it sometimes appears to be today. A lot more straight rye was sold then, for example. Anyway, one giant producer--Jim Beam--decided to be a bourbon company and invest a lot in equating "bourbon" with "quality." At the same time another giant producer--Brown-Forman--went the other way, not against bourbon, but promoting brands (Jack Daniel's, Early Times) instead of a type.

Gillman
10-02-2004, 14:25
I think that's right, Chuck. If the answer was, "yes" that wouldn't make sense (always assuming JD is technically a bourbon) because Brown Forman would not put out labels that do not comply with the regulations, nor would the government accept them of course. So the answer either is no or as you say, maybe. I guess what I meant was, I am not sure what posture Brown Forman has taken on the matter but also that gets into question 1, i.e., maybe B-F considers the whiskey isn't technically bourbon to begin with.

Gary

bluesbassdad
10-02-2004, 15:27
I was thinking along the same line at one point.

Then I realized that aging in a new, charred, oak barrel could be said to do the same sort of thing -- adding flavor.

OTOH, the use of said barrel is an element of the definition of bourbon. Therefore, any flavor it may add is permissible, literally by definition.

Flavor added in any other manner should not be considered permissible under the definition of bourbon merely because it comes from a material (hard maple charcoal) that is superficially similar to the material (charred oak) that adds flavor to bourbon.

At least that's the way I see it, FWIW.

Yours truly,
Dave Morefield

tdelling
10-02-2004, 16:29
&gt; I believe that filtering, by definition, does not add, but is intended to
&gt; remove something.

I think that you've used a really important word there: "intended".
Let's say that you accidentally use, say, rubber hoses that leach out
a little rubbery flavor into your bourbon during bottling. Is this
considered flavoring, thereby disqualifying the product form being bourbon?
I would argue the answer is no. It was not intentional.

Since the intention of the charcoal is to filter, I would say that any
added flavor is unintentional, thus doesn't count as flavoring.

Tim Dellinger

gr8erdane
10-02-2004, 16:50
Ah yes, but if they only intended to charcoal filter the product without changing it in any way, wouldn't they use charcoal made from oak rather than maple?

cowdery
10-03-2004, 03:02
Brown-Forman believes it is an advantage to be distinctive and not a bourbon. I have never seen any evidence that Jack Daniel's ever wanted to be called bourbon or, conversely, ever faced a government action trying to force it to call itself bourbon. The only evidence I have ever seen is that 1941 letter, with the understanding that the letter was sought by Regor Motlow for the purpose of providing federal acknowledgement of Tennessee Whiskey as a distictive type, for the purpose of establishing a standard for Tennessee Whiskey that happened to correspond to how they make their product and also to how straight boubon whiskey is made, almost as if it were part of §5.22(b)(1)(i). In other words, the letter was as good as they were going to get, and it was almost as good as getting the words "Tennessee whiskey" into §5.22(b)(1)(i). They got an effective Tennessee whiskey standard without going through the rules change process.

Here are the relevant sections.



§5.22(b)(1)(i) "Bourbon whisky", "rye whisky", "wheat whisky", "malt whisky", or "rye malt whisky" is whisky produced at not exceeding 160° proof from a
fermented mash of not less than 51 percent corn, rye, wheat, malted barley,
or malted rye grain, respectively, and stored at not more than 125° proof in
charred new oak containers...





§5.22(b)(1)(iii) Whiskies conforming to the standards prescribed in paragraphs (b)(1)(i) and (ii) of this section, which have been stored in the type of oak containers
prescribed, for a period of 2 years or more shall be further designated as
"straight"; for example, "straight bourbon whisky"...





§5.23(a)(1) The addition of any coloring, flavoring, or blending materials to any class and type of distilled spirits, except as otherwise provided in this section, alters the class and type thereof and the product shall be appropriately redesignated.



Note the words in §5.22(b)(1)(iii): "Whiskies conforming to the standards prescribed in paragraphs (b)(1)(i) and (ii) of this section...shall be further designated as 'straight'" (emphasis mine). It says "conforming to the standards," it doesn't say, "Whiskies named in paragraphs (etc.)(emphasis mine)." This is a little different than what I said it was, but trickier. According to the letter of the law, Daniel's should be able to call itself Tennessee straight whiskey or straight Tennessee whiskey, because it conforms to standards described in one of the relevant paragraphs, but it conforms to the standards for bourbon whiskey. As far as those paragraphs are concerned there is no such thing as Tennessee whiskey. But it doesn't say there can't be, because it doesn't say "whiskies named."

Then you look at Jack Daniel's and you think, "wait a minute, this is Jack Daniel's, the best selling American whiskey in the world and almost the best selling any-kind-of whiskey in the world. Why would you change anything?"

(Okay, they changed the proof, but they had more than 13 million good reasons to do that. The value of trying to use "straight" is dubious.)

As Tennessee Whiskey, distinctive in its own right, it never has to reach the question of whether or not the Lincoln County Process is additive or not.

I have my own ideas about what "tests" they did at the Tax Office in 1941 to determine that Tennessee Whiskey was 'distinct' from bourbon and rye. I suspect they were a lot like the tests I'm doing on some Rittenhouse Rye BIB right now.

Motlow may not have got what he wanted, but he got what he needed.

dgonano
10-03-2004, 20:17
Chuck,

According to paragraph 5.22(b)(1)(i)the spirit is bourbon if all the requirements are met. But Tennessee Whiskey is charcoal filtered "before" it is placed in the barrel at no more than 125 proof. Thus it was disqualified before it met all the requirements mentioned. It seems it could not be labeled as a bourbon.

karengonano
10-04-2004, 07:53
hi everyone,

i am dave g.'s daughter. i do not know much about bourbon, but i like to comment every so often.

my current comment is...dad, since when were you such a know-it-all? quoting some code?

i thought that was my m.o.

karen

cowdery
10-04-2004, 10:37
The code is silent about a lot of things, including filtering at any point in the process. It is silent about mashing techniques, cooking under pressure or not, dry or jug yeast, sour or sweet mash, doubler or thumper. It is silent about a lot of processes and steps that occur prior to barreling and there is variation among producers in the processes they use. None of that variation disqualifies them from meeting the type standards. It is a misreading of the code to conclude that doing "something else" in addition to what the code requires renders a product non-conforming.

It's pretty simple, really.

Is Tennessee whiskey produced at not exceeding 160° proof from a fermented mash of not less than 51 percent corn?

Yes.

Is Tennessee whiskey stored at not more than 125° proof in charred new oak containers?

Yes.

Is Tennessee whiskey stored in the type of oak containers prescribed for a period of 2 years or more?

Yes.

Ergo, Tennessee whiskey conforms to the standards for straight bourbon whiskey.

The only thing that might subsequently disqualify a conforming type is what is described in §5.23(a)(1), "the addition of any coloring, flavoring, or blending materials," beyond the listed permissible exceptions. It is debatable whether or not the LCP is additive. My opinion is that it is not, but one could reasonably argue to the contrary.

My conclusion is that the only possible way in which JD might not conform to the standards for bourbon is if the LCP is considered additive under §5.23(a)(1).

Gillman
10-04-2004, 11:47
Section 5.35(a) was cited earlier as requiring mention of "bourbon" on the label (class and type name) if the item is bourbon whiskey. The section seems written in a mandatory way. Since the Jack Daniel label does not state that it is bourbon, this leads me to think the additive argument is what is being relied on unless the words "Tennessee whiskey" or "whiskey" fulfill the requirement of section 5.35 but at first blush (i.e., without a detailed consideration including the legislative history, etc.) this seems not to be the case.

Gary

cowdery
10-04-2004, 13:21
Here is the relevant portion of §5.35



§5.35 Class and type.
(a) Designation of product.
The class and type of distilled spirits shall be stated in conformity with §5.22 if
defined therein.



This would seem to require a product that conforms to the standards for bourbon (type) whiskey (class) to identify itself as bourbon whiskey, hence the need for the 1941 letter effectively waiving this requirement for Tennessee whiskey. Rather than the additive argument being relied on, the 1941 letter prevents the additive argument from being reached. JD never wanted to called itself bourbon. It wanted permission to make bourbon but not call it bourbon, which is what it received in 1941. Note also the importance in the regs of "trade and consumer understanding." The purpose of the regs is to prevent the trade and consumers from being misled. Since there is no intention on the part of JD to mislead by not labeling its product "bourbon," since JD has been forthright about what JD is, and since there doesn't appear to be any problem of trade or consumer misunderstanding with regard to the product's identity, the regs are not offended by the company's use of the term "Tennessee Whiskey" and its failure to use the term "bourbon." Effectively, the letter declares Tennessee Whiskey to be a type of whiskey, within the meaning of §5.22, without codifying it.

cowdery
10-04-2004, 13:56
This might also be useful. It is a statement of the mission of the U.S. Treasury Department's Alcohol and Tobacco Tax and Trade Bureau (TTB).



TTB’s Advertising, Labeling, and Formulation Division (ALFD) implements and enforces a broad range of statutory and compliance provisions of the Internal Revenue Code (IRC) and the Federal Alcohol Administration Act (the Act). The Act requires importers and bottlers of beverage alcohol to obtain certificates of label approval or certificates of exemption from label approval (COLAs) for most alcohol beverages prior to their introduction into interstate commerce. ALFD acts on these COLAs to ensure that products are labeled in accordance with Federal laws and regulations.

ALFD also examines formulas for wine and distilled spirits, statements of process, and pre-import applications filed by importers and proprietors of domestic distilled spirits plants, wineries, and breweries for proper tax classification and to ensure that the products are manufactured in accordance with Federal laws and regulations.





Also, has anyone read the Peter Krass biography of Jack Daniel, Blood &amp; Whiskey? I wonder if he addresses any of this.

chasking
10-04-2004, 14:59
Section 5.35(a) was cited earlier as requiring mention of "bourbon" on the label (class and type name) if the item is bourbon whiskey. The section seems written in a mandatory way. Since the Jack Daniel label does not state that it is bourbon, this leads me to think the additive argument is what is being relied on unless the words "Tennessee whiskey" or "whiskey" fulfill the requirement of section 5.35 but at first blush (i.e., without a detailed consideration including the legislative history, etc.) this seems not to be the case.



I have not had a chance to do any historical research on it, but I have a strong suspicion that the 1941 letter would not be applicable under the current regs. Although the current regs may encompass concepts from back then, the regs in their initial form post-date the letter by at least several decades, and they have been subject to steady evolution since then.

What I think is most likely is the following: at one time (1941, at least), JD was not required to call (or even prohibited from calling) its whiskey "bourbon", so it didn't---and it has simply continued to label its whiskey the same way it always did. The regs have, I suspect, changed to the point where now if it was starting from scratch it would have to be labeled a bourbon. But, neither JD, the government, nor the drinking public have any particular incentive to change the way things have gone for so long. In fact, would it make a difference, even to other bourbon producers, if JD was called "Tennessee Bourbon Whiskey" on the label? Also, never underestimate the...pragmatism...that the government can display when dealing with economic heavy hitters.

The people who care (i.e., we) already know or can easily find out that JD is distilled from a bourbon mashbill using bourbon production methods, plus the LCP.

I note that an afternoon in the law library should be able to produce definitive answers to some of the presently open questions. Some day if I'm not too busy I will try to trace back the regs and figure out what happened when.

One question that still intrigues me, and that I don't think could be answered at the library is this: So, what exactly is "Tennessee Whiskey"? There is no legal definition, so the only restriction would seem to be from Section 5.22(k)(1), which only comes into play if Tennessee whiskey is a "distinctive type of distilled spirit". Earlier in this thread Chuck Cowdery opines that Tennessee whiskey is not its own category of spirit, because it is a variety of whiskey, an established spirit type. If that is the case (and I suspect a couple distillers I can think of would argue against it, to who knows what effect?) then it seems that one could distill any kind of whiskey geographically within Tennessee and call it Tennessee whiskey. "Tennessee Moon", anyone?

Chuck King
(the other whiskey-drinking lawyer from Chicago named Chuck)

Gillman
10-04-2004, 15:16
All good points, but why then did Reagor Motlow seek the opinion of Treasury in 1941? I am wondering if perhaps an excise or other tax rate of the time depended on it, i.e., the product, if considered bourbon or rye, would have attracted a higher rate of tax than if designated only whiskey (Tennessee or other as long as it wasn't bourbon or rye). What turned, precisely, on the answer Reagor Motlow sought? We know the answer but not the question, or the full question..

Gary

cowdery
10-04-2004, 15:25
I think Motlow would have liked "Tennessee whiskey" to be included in 5.22 but settled for the letter instead.

As for "What is Tennessee Whiskey?" that is actually easy to answer. Tennessee whiskey is bourbon that has been LCP'd (shorthand for us, we're not rulemaking here) before barreling.

TNbourbon
02-03-2005, 15:45
JD and GD can't call themselves "straights" because the "straight" designation is only available to the specified named types, e.g., bourbon, rye, wheat, corn, etc.



The federal U.S. International Trade Commission, in its "Industry &amp; Trade Summary: Distilled Spirits" (USITC Publication 3373, November 2000) does indeed label Tennessee whiskeys as 'straights'.
On Page 16, in a section headed "Bourbon Production", it states immediately:
"The unique distilled spirit produced exclusively in the United States is straight whiskey, including straight bourbon and Tennessee straight whiskey...Tennessee whiskey is almost identical to bourbon, but is filtered through maple charcoal before aging, and because of this additional processing step, is designated as a unique category of 'straight whiskey'."

Here's a link to the report in PDF form:

USITC Publication 3373: Distilled Spirits (http://purl.access.gpo.gov/GPO/LPS17672)

Hedmans Brorsa
02-04-2005, 03:32
I might have missed some vital detail in the plethora of posts in this thread but I have to ask again :

What about Lem Motlow Tennessee whiskey who was supposed to be only one year old?

cowdery
02-04-2005, 15:30
All this proves is that just because something is in a federal government report, that doesn’t make it right. A report is not the law. The law says something quite different. I refer you to 27cfr5.22. (The emphasis added is mine.)

(1)(i) "Bourbon whisky", "rye whisky", "wheat whisky", "malt whisky", or "rye malt whisky" is whisky produced at not exceeding 160 proof from a fermented mash of not less than 51 percent corn, rye, wheat, malted barley, or malted rye grain, respectively, and stored at not more than 125 proof in charred new oak containers; and also includes mixtures of such whiskies of the same type.

(ii) "Corn whisky" is whisky produced at not exceeding 160 proof from a fermented mash of not less than 80 percent corn grain, and if stored in oak containers stored at not more than 125 proof in used or uncharred new oak containers and not subjected in any manner to treatment with charred wood; and also includes mixtures of such whisky.

(iii) Whiskies conforming to the standards prescribed in paragraphs (b)(1)(i) and (ii) of this section, which have been stored in the type of oak containers prescribed, for a period of 2 years or more shall be further designated as "straight"; for example, "straight bourbon whisky", "straight corn whisky", and whisky conforming to the standards prescribed in paragraph (b)(1)(i) of this section, except that it was produced from a fermented mash of less than 51 percent of any one type of grain, and stored for a period of 2 years or more in charred new oak containers shall be designated merely as "straight whisky". No other whiskies may be designated "straight". "Straight whisky" includes mixtures of straight whiskies of the same type produced in the same State.