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  1. #41
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    Re: The Lincoln county process

    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

  2. #42
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    Re: The Lincoln county process

    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

  3. #43
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    Re: The Lincoln county process

    > I believe that filtering, by definition, does not add, but is intended to
    > 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

  4. #44
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    Re: The Lincoln county process

    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?

  5. #45
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    Re: The Lincoln county process

    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.

  6. #46
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    Re: The Lincoln county process

    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.

  7. #47
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    Re: The Lincoln county process

    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

  8. #48
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    Re: The Lincoln county process

    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).

  9. #49
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    Re: The Lincoln county process

    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

  10. #50
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    Re: The Lincoln county process

    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.

 

 

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