The Lincoln county process

[cowdery]

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 & Whiskey? I wonder if he addresses any of this.

[chasking]

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]

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]

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]

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 & 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

[Hedmans Brorsa]

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]

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.