Whiskey Wednesday: Bourbon Law for Whiskey Geeks

There always seems to be a lot of confusion about American whiskey and recently I've seen some confusion even among whiskey geeks. Lucky for us, the regulations governing bourbon are readily available in Title 27, Chapter I, Part 5 of the U.S. Code of Federal Regulations. They are promulgated by the Alcohol and Tobacco Tax and Trade Bureau (TTB), an agency of the United States Treasury. Using those regulations, here is some advanced bourbon law.


The Basics

Nowadays, most everyone who is a whiskey lover seems to know the basics: Bourbon is required to be made from a mash of at least 51% corn, must be made in the United States (not just Kentucky) and must be stored in new, charred oak. 27 CFR § 5.22(b)(1)(i).


Bourbon has no Age Requirement

It seems to be a common misconception that bourbon has to be aged for two years. That is not the case unless it is labeled "straight bourbon." There is no ageing requirement for bourbon, only the requirement, mentioned above, that it be "stored" in charred new oak containers. If you store it for ten minutes, it is bourbon. Straight bourbon, on the other hand, must be aged for two years. 27 CFR § 5.22(b)(1)(iii). Bourbon that is bottled in bond (BIB) must be at least four years old. 27 CFR § 5.42(b)(3)(iii). If any bourbon is less than four years old, it must state the age on the label. 27 CFR § 5.40.

People seem to have trouble absorbing the fact that bourbon does not need to be aged for any distinct period of time. There are likely two reasons for this common misconception. First, in many whiskey producing nations, including Scotland and Canada, there is a mandatory ageing period of three years. Second, up until the craft distillery revolution of the last four or five years, nearly all bourbon available for sale in the US was straight bourbon and, therefore, required to be aged for at least two years. The concept of bourbon that wasn't straight was mostly theoretical. Now, with the onset of the craft distilleries, there are many bourbons on the market that have been aged for much less than two years.


Some Whiskey May Contain Coloring

This is really the same issue as with ageing. Straight whiskey may not contain any coloring or flavoring, but no such restriction is imposed on whiskey that does not carry the "straight" designation, 27 CFR § 5.23(a)(3), and added caramel coloring does not need to be disclosed on the label of non-straight whiskey. 27 CFR § 5.39(b)(3). However, the TTB's Beverage Alcohol Manual states that bourbon of any kind (not just straight) cannot contain coloring or flavoring.  The Manual is not an official regulation, but it is a guideline as to how the TTB interprets the regulation, so for now, the TTB is apparently interpreting it in a way that prohibits coloring and flavoring in any bourbon, though they do allow coloring in non-straight rye, wheat and corn whiskeys.  


Can Bourbon be Finished in Wine Casks?

Once bourbon has been stored in its legally required new charred oak, can it be transferred to wine or other casks and still be labeled bourbon or straight bourbon? Following the lead of Scotch, where finishing has been quite popular for about a decade, several distilleries have transferred bourbon to used wine casks to benefit from the flavoring of those wines.

This is not a clear issue under the regulations. They do state that the addition of any "coloring, flavoring or blending material" can change the designation of the spirit. 27 CFR § 5.23(a)(1). However, "harmless coloring, flavoring, or blending materials" can be added under certain circumstances without changing the designation of the spirit. One such allowance is for the addition of wine if it is "customarily employed...in accordance with established trade usage" and if it does not total more than 2.5% of the total finished product. 27 CFR § 5.23(a)(2). However, no such coloring, flavoring or blending materials, including the aforementioned wine, can be added to straight whiskey. 27 CFR § 5.23(a)(3).

The threshold question with regard to cask finishing is whether the use of a wine cask constitutes a "coloring, flavoring or blending material." I would think not, since there is nothing being added. Of course, the entire purpose of using a wine cask is so that the bourbon will absorb some of the wine which is locked in the wood (or in some cases has actually drained into the barrel). In that case it could be considered an additive but that is a fairly hypertechnical reading.

Chuck Cowdery, the bourbon expert and lawyer, takes the position that once something is bourbon (and presumably straight bourbon), it cannot become unbourbon. So, in his view, if you add something else to bourbon, it only need state that on the label. You should be able to bottle, for instance, straight bourbon and cola as long as it's labeled as such. While cola certainly could be considered a flavoring, this position could be seen as consistent with the TTB regulations since it would not be the case of adding cola and continuing to use the designation of Straight Bourbon. Rather, it would be changing the designation to Straight Bourbon & Cola.

With regard to cask finishing, the TTB appears to agree with Cowdery, having allowed a number of finished products to maintain the straight bourbon designation. The Woodford Reserve Sonoma Cutrer Finish was labeled Kentucky Straight Bourbon Whiskey Finished in California Chardonnay Barrels. The recently released Angel's Envy was similarly labeled.

And the TTB has gone even further, approving Red Stag, the cherry bourbon liqueur from Jim Beam, which is labeled Kentucky Straight Bourbon Whiskey Infused with Natural Flavors. This one is strange in that it clearly includes flavoring agents which would seem to alter the class and type, but as noted above, this isn't being labeled as just straight bourbon. The label clearly designates that it is straight bourbon with added flavoring. Given that one of the primary purposes of these labeling regulations is to protect and inform the consumer, that seems like a reasonable outcome.

Thus, it seems that the Cowdery rule (one of many, which I will have to list at some point) is correct, at least in the eyes of the TTB. Once a spirit meets the standard for bourbon or straight bourbon, it stays that way as long as the label indicates any additions.

The troubling thing is that based on this logic, it seems that a distillery could also add caramel color to straight bourbon and label it straight bourbon with caramel coloring. That would obviously flout the prohibition on coloring in straight bourbon.

Of course, the TTB isn't perfect and sometimes contrary approvals come down. Hopefully, no one will push the boundries and ask to add coloring. All such issues remain theoretical until someone requests the approval of a label.


If you have any bourbon questions (or opinions) let me know. I have a very affordable hourly rate.