The Lincoln county process

[chasking]

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">( 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]

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]

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]

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]

> 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]

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]

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]

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 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 It has met all the legal requirements to be called Sour Mash Bourbon.

Hmmmmmmmm...Both (JD & 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

It's their trademark

Hmmmmmmmm...Maybe the question should have started out as...Is Jack Daniels "technically" Bourbon?

I'm done

Bettye Jo

[Gillman]

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]

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]

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.

[tdelling]

> (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?

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]

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]

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]

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]

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]

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]

> 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

[gr8erdane]

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]

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((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((1)(i). They got an effective Tennessee whiskey standard without going through the rules change process.

Here are the relevant sections.

§5.22((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((1)(iii) Whiskies conforming to the standards prescribed in paragraphs ((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((1)(iii): "Whiskies conforming to the standards prescribed in paragraphs ((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]

Chuck,

According to paragraph 5.22((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]

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]

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]

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]

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.