Most Micro-Distillery Whiskeys Are Illegal In California.

[cowdery]

This is fascinating! Apparently, nearly all micro-distillery whiskeys are illegal in California. The law there says that a distilled spirit labeled as 'whiskey' has to be at least three years old. (That's the rule in Europe too, by the way, which has been giving mirco-distillers fits.) It's the rule in California but no one, including California's alcohol regulators, seems to know about it, because many <3-year-old whiskeys are sold there.

California also appears to require charred barrels.

The pertinent section also uses the term 'straight whiskey' without defining it, which seems like an indirect acknowledgement of the federal Standards of Identity, where it is defined. The term 'straight whiskey' is used nowhere else in the 376-page law.

Presumably, if this rule were to be enforced it could be challenged on the grounds that the federal rules control, and the federal rules have no such requirement.

Here is the relevant section.

25175. Age of whiskey. Any person who sells at retail any potable spirituous liquor product labeled as whiskey, including blended whiskey and blends of straight whiskeys, except products containing 20 or more percent of straight whiskey or whiskeys which have been aged in charred oak containers for three or more years after distillation and before bottling is guilty of a misdemeanor, except that this section does not prohibit the sale at retail of unaged corn whiskey, when so labeled, or the sale at retail of gins, brandies, rums, cordials, liqueurs, bitters, or other distilled liquor products or products compounded of distilled spirits and other materials, when in no wise labeled as whiskey or blended whiskey or blends of straight whiskeys, or the sale at retail of Scotch whiskeys, or spirit whiskeys containing not less than 5 percent straight whiskey, three years old or older.

[OscarV]

Sounds good to me.

Here's to Cali!!!

These so called "craft" distillers need to get reigned in.

[SMOWK]

Can't they still sell it outside of California?

[cowdery]

I don't know of any other states with similar rules but I just learned about the California one a few hours ago.

Obviously, this hasn't been enforced because Old Potrero has been in violation for however long they've been in existence, and it is not only sold in California, it's made there.

[squire]

Uh, that's the homegrown rule Chuck, as in what's the law between friends.

[sku]

That is fascinating. I'd never seen those either. Normally, you would think that any state law that so clearly conflicts with federal standards would be quite obviously preempted, but the 21st Amendment would seem to create an exception to the general supremacy of US law.

Interestingly, looking at the legislative history, prior to being amended in 1984, the law required 4 years of ageing.

[cowdery]

I feel pretty sure it would be preempted if they tried to enforce it. That's the only way to challenge it. Otherwise it will just sit there on the books, scaring the new micro-distillers, which is how I found out about it.

[cowdery]

I have been informed that Old Potrero has a special label for California that doesn't use the word 'whiskey.'

[squire]

That's a joke, right Chuck, you're just trying to see if the California members are on their toes.

[CorvallisCracker]

I have been informed that Old Potrero has a special label for California that doesn't use the word 'whiskey.'

I was raised to believe that "saying it don't make it so."

But does not saying it make it not so?

[Rughi]

I have been informed that Old Potrero has a special label for California that doesn't use the word 'whiskey.'

I have a 2yo bottling from 2000 that states "Single Malt Spirit," not whiskey. It also states "for sale in California only."

[kickert]

I find it very interesting that the penalty lies on the seller (if I am reading it correctly). So if a micro makes it, a distributor picks it up, a store carries it, but it is a clerk that makes the final sale, it will be the clerk guilty of the misdemeanor.

That alone makes me think they will never enforce it.

[squire]

Enforce it? Hell, they'll probably never read it.

[cowdery]

I find it very interesting that the penalty lies on the seller (if I am reading it correctly). So if a micro makes it, a distributor picks it up, a store carries it, but it is a clerk that makes the final sale, it will be the clerk guilty of the misdemeanor.

That alone makes me think they will never enforce it.

The person responsible is the person whose name is on the license, so the retailer but not the register clerk. I don't know if California has a label approval process but, presuming they do, the retailer is entitled to assume that any approved label is a legal label.

I'm sure the ABC has the authority to remove a non-compliant product from distribution but they wouldn't do it by citing retailers. It's not the greatest legal drafting but what it means is the same as what the Federal Standards of Identity means, this is the standard for what can be sold as whiskey in California.

Although one might argue that the Federal law simply pre-empts the California law, California has often won the right to consider Federal standards just a starting point, upon which they can impose a stricter California standard. They aren't contradicting the Federal law, just elevating the standard.

If this question has been litigated, I haven't heard about it.

Come on, Californians. Stranahan's is sold there, isn't it? (2 years) What other underage whiskeys are sold in the lawless West?

Remember, it doesn't matter where it's made. If you want to sell it in California, you have to follow California's rules.

Or not.

[kickert]

The person responsible is the person whose name is on the license, so the retailer but not the register clerk.

On what grounds are you getting this from?

The law you quoted said "Any person who sells at retail any potable spirituous liquor product labeled as whiskey"

Sounds like they are looking for an individual not a licensee...

[cowdery]

You'd have to look at the rest of the law to see if it authorizes penalties for employees of the licensee and you may be right but that's not how it would normally operate. An ABC typically doesn't have full police powers. Its authority is over its own licensees and over persons who perform licensed activities without benefit of the license. The clerk is considered an extension of the licensee but the penalty would typically be on the license holder. A literal reading of this particular section is silly anyway because the law is not trying to say it's up to store sales clerks to police the age of aged spirits. It just has to be written this way because of the limited authority of the ABC. They regulate what can be sold so they have to put it in those terms. You're suggesting this law puts sales clerks at risk of arrest or other penalties and that's an absurd reading.

I have been informed that Redemption Rye and Redemption Bourbon, both two-year-olds, are for sale in California with the word 'whiskey' on the label. It would be interesting if clerks in California started to refuse to sell it per Ben's interpretation of the statute.

[kickert]

You're suggesting this law puts sales clerks at risk of arrest or other penalties and that's an absurd reading.

Hey man... I am just reading it as it is stated...

Any person who sells at retail any potable spirituous liquor product labeled as whiskey, including blended whiskey and blends of straight whiskeys, except products containing 20 or more percent of straight whiskey or whiskeys which have been aged in charred oak containers for three or more years after distillation and before bottling is guilty of a misdemeanor...

[cowdery]

Why do I even bother.

[kickert]

Why do I even bother.

Not all of us have the benefit of a law degree to help us understand the intricacies and technicalities of alcohol statutes.

[squire]

The guys that write those statues have law degrees and they don't understand them.