Tuesday, June 19, 2012

Whiskey Law: Barrels New & Used

Most American whiskey drinkers know that according to U.S. regulations, bourbon must be aged in new, charred oak containers. But did you know that American rye whiskey, wheat whiskey, malt whiskey and rye malt whiskey also must be aged in new charred oak? In addition, any whiskey labeled "straight," with the exception of straight corn whiskey, must be aged in new charred oak. (Want proof? See the US Code of Federal Regulations, 27 CFR § 5.22(b)(1)(i) and 5.22(b)(1)(iii)).

A distillery can make a whiskey and age it in used barrels but they cannot call it bourbon, rye whiskey, etc. Some such whiskeys are just labeled generically, such as Early Times' "Kentucky Whiskey." The TTB also recognizes the categories of whiskey distilled from bourbon mash, rye mash, wheat mash, etc. If you see that designation, it means that the whiskey was stored in used oak.

The new oak requirement presents a problem for American distilleries that want to make Scotch style single malt whiskey. Scotch single malts are almost always aged in used barrels (often bourbon barrels), but an American distillery can't call its spirit "malt whiskey" if it's aged in used oak.


Joshua Feldman said...

I checked the cited Code of Federal Regulations and you're right:

"(1)(i) ‘‘Bourbon whisky’’, ‘‘rye whis-
ky’’, ‘‘wheat whisky’’, ‘‘malt whisky’’,
or ‘‘rye malt whisky’’ is whisky pro-
duced at not exceeding 160° proof from
a fermented mash of not less than 51
percent corn, rye, wheat, malted bar-
ley, 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."

However, a potential loophole is implied by the length of time in said barrel not being specified. This is made explicit in the regulation governing the use of the term "straight":

"(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 des-
ignated as ‘‘straight’’"

The idea here is that as long as it spends time stored in a new charred oak barrel it is "whisky". If it spends 2 years or more it's "straight whisky". Why would it not be legal to stored Scotch style whisky in a new charred oak barrel for a month, or a week, or even a single day and then transfer it to a bourbon or sherry cask for next 10 years or so? Because the law doesn't stipulate time periods other than for the designation "straight" either all barrel finishing is forbidden for the "whisky" designation or all is permitted. I.e. if something like Parker's Heritage (which is Cognac barrel finished) or Angel's Envy (which is port barrel finished) is considered "whisky" then you could extend this reasoning to allow Scotch-style malt whisky which is aged in new charred oak for a short period and then used barrels for a long period.

However, a more logical thing would be to change the law to allow the production of Scotch-style whisky without the stipulation of new oak barrels. Why should domestic malt whisky producers be legally required to age in new oak? I can understand wanting to maintain this regulation for bourbon - but the US doesn't have a long standing tradition of aging malt whisky in new oak. The law serves no logical purpose for malt whisky.

sku said...

I agree with your analysis Joshua. As you note, there is no time requirement for non-straight whiskeys to spend in the barrel.

Therefore, someone wanting to create an American style Scotch and call it "malt whiskey" could put it new, charred oak for a minute and then transfer it to sherry (or another cask) for 10 years. They would then have to call it "Malt whiskey finished in sherry casks" or something like that.

Of course, instead of going to all that trouble (and expense), they could skip the new barrel and just call it "American Whiskey" or "Whiskey distilled from malt mash."

Lazer said...

The law might be a quid pro quo. We will protect the Scotch producers in America and they will protect the American producers in Scotland. They can't make bourbon and we can't make single malt.

Matthew said...

Death's Door does something similar with their white whiskey. Obviously, no producer could afford to age in new barrels for only a minute, so they use old casks. They age it for a day, I think, and then bottle it as whiskey.

sku said...

Matthew, that's now a common practice for micros. If they want to call their new make "white whiskey" as opposed to moonshine or new make, they need to put it in a barrel, though not a new one.