Grain of Truth: What is a Grain Anyway?

As I mentioned in yesterday's post about a so-called "potato whiskey," the federal regulations require that whiskey be made from grain, but what is a grain? Ten years ago, there was no reason to ask this question, since at that time, all American whiskey was made from some combination of corn, wheat, barley and/or rye. Today, however, we live in a completely different whiskey world. The explosion of the craft distilling movement has brought with it numerous innovations around whiskey, including in the mashbills. Today there is whiskey being made from spelt, millet, oats, buckwheat, hops, you name it. But are all of these grains?

Interestingly, the term "grain" is not defined in the federal regulations that set out definitions for spirits nor is it defined in Title 27 of the United States Code, which governs alcohol. The term is defined in other sections of the code. In the agricultural standards, 7 U.S.C. § 75(g), there is the following definition: the term "grain" means corn, wheat, rye, oats, barley, flaxseed, sorghum, soybeans, mixed grain, and any other food grains, feed grains, and oilseeds for which standards are established under section 4 of this Act. There is another provision, in the Bankruptcy Code, that actually includes "dry edible beans" in the definition of "grain" (11 U.S.C. § 557(b)(1)), but the provision makes clear that its application is limited to the bankruptcy of someone who owns or operates a grain storage facility, so let's concentrate on the definition of grain in the agricultural standards provisions.

The Agricultural Code definition is very loose and includes a catch all to include any other grain for which standards are established by the Secretary of Agriculture. If soybeans, a legume, are a grain, then why not other beans, or peanuts for that matter? As to oilseed, another section of the Code tells us that the term "oilseed" includes "soybeans, sunflower seed, rapeseed, canola, safflower, flaxseed, [and] mustard seed" among others. (7 U.S.C. § 1462). Mustard whiskey anyone? Heck, I'm beginning to wonder if potatoes really could be a grain.

All that being said, it would be perfectly reasonable for the TTB, to determine that the term "grain" as used in the regulation of spirits is defined differently than when used in the agricultural code. It is fully appropriate to have different definitions for the same word in different contexts. In a famous nineteenth century case, the Supreme Court held that tomatoes should be deemed a vegetable for the purposes of tariffs because while botanically a fruit, its traditional use was more akin to that of a vegetable. (Nix v. Hedden, 149 U.S. 304 (1893)). So even though the term grain is broadly used in some contexts, in the world of whiskey, the TTB can and should use a narrower definition.

Why is this at all important? Well, if we want the terms we use to mean anything and want to have some understanding of what we are purchasing when we purchase "whiskey," these definitions are the way to do it. I have no problem with anyone who wants to make soybean liquor, but let's not call it whiskey, that would be going against the grain.