Let them call it Whisky: Artificially made wines and spirits require us to rethink the Standards of Identity.

  This recent article by Hannah Goldfield, the New Yorker’s food critic in the Wall Street Journal about Endless West creating wine and whiskey from base ingredients to generate luxury brand comparables would make good meat for a textbook analysis of Thorstein Veblen’s concept of conspicuous consumption.

  As the article tells it, scarcity and opportunity created the impulse to take on industrially manufacturing Dom Perignon and Pappy. A $10,000 bottle of 1973 Chateau Montelena Chardonnay (the Judgment of Paris “Bottle Shock” wine) led to a desire to simply create the same compound that would allow everyone a taste of the beverage for little more than the price of the composite ingredients (well, at the articles quoted $50 a bottle for an imitation Dom, not exactly the price of ingredients). But the point is well made, the good stuff brought to the masses. The article even points out that the typical interaction and language of Silicon Valley’s entrepreneurial set regarding bringing something heretofore out-of-reach to the masses:

  One goal of Endless West is to provide a limitless supply of whiskey that tastes as good as or better than Pappy Van Winkle’s Family Reserve, at a much lower cost.

  This reminded me of the Lost Spirits brand and their “flash-aging” technology for developing complex flavor profiles usually associated with aging (decades reduced to a matter of days) that got them featured in Wired in an article by Wayne Curtis – a method that creates the flavor profiles of aged spirits involves their patented THEA 1 reactor – and admittedly, with perhaps a more honest goal in mind:

“You know the Pirates of the Caribbean ride at Disney?” Davis says. “You can’t just get off and drink with the pirates. That’s the problem we were trying to solve.”

Both these distilleries appear to have thought about and dealt with what they’re calling their products in different ways. You can see the Glyph label from their TTB COLA Certificate here:

Glyphlabel from COLA
  As noted in the Wall Street Journal article, Endless West is actually blending what they’re making with at least 5% Whisky, because in order to make something with at least one of the many different and varied products under the Whisky category (there are over 15 including variants in the Standards of Identity – think “Corn Whisky”, or  “Bourbon whisky”, “rye whisky”, “wheat whisky”, “malt whisky”, or “rye malt whisky”) the standards of identity force them to adhere to the proscribed method of manufacturing/ingredients to meet the categorization.

      A brief aside for those wondering what the Standards of Identity are:

  • Section 5.22 establishes standards of identity for distilled spirits products and categorizes these products according to various classes and types. As used in § 5.22, the term “class” refers to a general category of spirits, such as “whisky” or “brandy.” Currently, there are 12 different classes of distilled spirits recognized in § 5.22, including whisky, rum, and brandy. The term “type” refers to a subcategory within a class of spirits. For example, “Cognac” is a type of brandy, and “Canadian whisky” is a type of whisky

  These classes and sub-classes and the manner in which they’re described do not look to the end result (that is, a machine might not be able to tell the difference between what Endless West produces and a 50-year Speyside) rather, much like an appellation or varietal for a wine that mandates growing in a given territory or using a particular grape, you can’t call it Whisky unless it falls into one of the rather rigid categories –  “Spirit Whisky” in Glyph’s case – under the Standards of Identity found in the Code of Federal Regulations at 27 CFR 5.22(b)(6):

(6) “Spirit whisky” is a mixture of neutral spirits and not less than 5 percent on a proof gallon basis of whisky, or straight whisky, or straight whisky and whisky, if the straight whisky component is less than 20 percent on a proof gallon basis.

  All this in spite of the fact that the actual definition seeks to rely on the common identity of the “taste, aroma, and characteristics generally attributed to whisky” in defining the class of spirits known as whisky prior to delving into the draconian and rigid methods and ingredients required to utilize one of the many whisky identities:

Whisky” is an alcoholic distillate from a fermented mash of grain produced at less than 190° 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° proof, and also includes mixtures of such distillates for which no specific standards of identity are prescribed

  Moreover, dictionaries don’t define the product anything more than a spirit distilled from grains. So why should we force innovators to create new product categories or into ridiculous labeling regimes when we don’t have to? Don’t think this matters – consider the Lost Spirits brand from the Wired article – it’s not a matter of stylistic eccentricity that their label reads like this:

Lost Spirits Abomination from COLA

  You know what spirits distilled from 100% malted Barley and heavily peated and finished in Madiera seasoned American Oak are? They’re Scotches – whiskey. But under a catch-all for the Standards of Identity – when something cannot fit into one of the Classes, it falls into the regime established under 27 CFR 5.35:

(a) Designation of product. The class and type of distilled spirits shall be stated in conformity with § 5.22 if defined therein. In all other instances the product shall be designated in accordance with trade and consumer understanding thereof, or, if no such understanding exists, by a distinctive or fanciful name, and in either case (except as provided in paragraph (b)(2) of this section) followed by a truthful and adequate statement of composition.

  Why not just let these products be called whiskey or whatever the company is looking to create from non-traditional methods when any number of instruments for measuring composition such as a gas or liquid chromatograph, or an electronic nose, atomic absorption spectroscopy or mass spectrometry cannot tell the difference between a rum that’s been photo-cryo aged by the THEA 1 and something aged 20 years in Cuba or between the bourbon made by Endless West and a Pappy.

  Moreover, those interested in this should keep an eye on a particular case out of Missouri. Missouri recently enacted a statute, Mo. Rev. Stat. § 265.494(7), prohibiting food companies from calling their products meat if those products aren’t derived from “harvested production livestock or poultry.” The ACLU, the Good Food Institute and the company that makes Tofurky – Turtle Island Foods – filed a lawsuit against the state claiming the statute violates the First Amendment, the Commerce Clause and the plaintiffs’ Due Process rights. You can read the complaint here.

  The main gist for the argument against the statute relies on the common definitions and understandings of “meat” in challenging the restrictive use that Missouri seeks to enforce under the statute. If it turns out that government imposed “Standards” that go beyond popular conceptions or understandings are unconstitutional, then there’s ample room to consider the same logic in addressing the naming of lab created, or synthetic, or manufactured, or whatever you-want-to-call-it-just-don’t-call-it-whisky, alcohol.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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1 Response

  1. October 4, 2018

    […] to our post yesterday on “Standards of Identity” there’s a mandate that identity and quality requirements for “type, category, class, or […]

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