Tennessee whiskey, Tennessee Fire

Unless you don’t care at all about whiskey, you’ve probably heard by now about the debate in Tennessee. In brief: Last year the state legislature passed a law officially restricting use of the term “Tennessee whiskey” only to products that meet all the requirements of bourbon and undergo charcoal mellowing. This is the traditional definition of Tennessee whiskey and the law was backed by Jack Daniel’s, the brand owned by Brown-Forman.

On the other side is a new effort to relax the law, such as by allowing distillers to skip charcoal mellowing or age their whiskey in used oak barrels. This effort is pushed by Diageo, owner of the George Dickel brand of Tennessee whiskey, which also complies with the traditional definition.

The debate has divided whiskey enthusiasts and libertarians, two groups with substantial overlap on a Venn diagram. Purists like Chuck Cowdery come down in favor of Daniel’s and against Dickel. My libertarian-leaning friend Doug Winship does too, though with a few more caveats. Elizabeth Nolan Brown at Reason notes that the existing law is a wee bit protectionist.

What’s a libertarian whiskey lover to think? I’m a bit conflicted myself. Below is my attempt at working it out, seen through the lens of a much easier case: bourbon.

Unless one holds that the position that there should be no legally defined standards of identity at all, one is probably OK with the standards for bourbon. (Basically, it has to be at made from at least 51% corn, aged in charred new oak barrels, and distilled and aged within certain ranges of proof.) Whether or not these were ideal standards at the time of passage, it would be a tough case to make that they should be changed now. Any distiller lobbying to do so would rightly be seen as trying to water down established standards.

With that in mind, here are five things I think the bourbon standard of identity has going for it:

1. Clearly defined processes within a well-established tradition among multiple producers.

2. Market recognition of the designation.

3. Long-standing law.

4. Broad geographic application (bourbon can me made anywhere in the US, not just Kentucky).

5. Doesn’t restrict competition from other distillers making other kinds of whiskey (they must simply refrain from using the word “bourbon”).

Now let’s compare this to Tennessee whiskey. Historically, this product is identical to bourbon in all but one essential aspect, the use of the Lincoln County process. This is the filtration of unaged spirit through charcoal, a step that mellows the finished whiskey.

Taking the five points above, how does a “Tennessee whiskey” designation compare to that of bourbon?

1. Clearly defined tradition among multiple producers: Tennessee whiskey definitely has the tradition part down. So much so, in fact, that despite my obsession with liquor laws, it’s easy for me to forget that it wasn’t legally defined until last year. Charcoal mellowing is deeply and historically entwined with Tennessee whiskey. The multiple producers part is not as solid. Until recently, there was only Jack Daniel’s and George Dickel (thank you, Prohibition). Now there is also Collier and McKeel and Prichard’s, the latter of which doesn’t use the process. Score: Daniel’s 1, Dickel 0.

2. Market recognition: This one’s more of a judgement call, but my impression is that consumer association of Tennessee whiskey is very strongly associated with Jack Daniel’s, and by extension with the processes used to make it. Moderately informed whiskey drinkers can tell you about the mellowing process that makes it unique. Score: Daniel’s 2, Dickel 0.

3. Long-standing law: There is no federal standard of identity for Tennessee whiskey. The Tennessee law went into effect less than a year ago. However NAFTA defines Tennessee whiskey as a bourbon produced in Tennessee, which does get at the requirement of using new barrels, but omits the charcoal mellowing. There’s a conservative case for not changing established law without good reason, but it’s weak here. I’m calling this a draw. Score: Daniel’s 2, Dickel 0.

4. Broad geographic application: Bourbon can be made anywhere in the United States. Tennessee whiskey, obviously, can only be made in Tennessee. This presents problems. What do you call charcoal-mellowed bourbon made in another state? What do you call a whiskey made in Tennessee that isn’t mellowed or doesn’t use new oak barrels? It would be nice if there was some other word for traditional Tennessee whiskey that didn’t involve a place name. Instead, non-traditional producers will have to use a work around like “whiskey distilled in Tennessee” (and is that really any less confusing for consumers?). Score: Daniel’s 2, Dickel 1.

5. Doesn’t restrict competition: Bourbon regulations apply equally to everyone. The Tennessee law doesn’t. It protects the three producers who follow the traditional recipe. It also protects Prichard’s, which doesn’t use the mellowing step, but was grandfathered in and is allowed to call its product Tennessee whiskey anyway. Any newer producers making a product otherwise identical to Prichard’s have to call theirs something else. This is a legal mess. Score: Daniel’s 2, Dickel 2.

So the final score is a tie. I’m not saying that’s a definitive measure or that all of these considerations should be weighted equally, but after giving this some thought my reluctant conclusion is that I just don’t care that much. There’s a good case to be made that Tennessee whiskey and its associated processes have a long, well-established tradition worthy of legal protection (at least as worthy as many other standards of identity). There’s also a pretty good case that legal protection is unnecessary and that the existing, extremely young law is too muddled to be worth defending. Keep it in place and Jack Daniel’s will continue to be the best-selling Tennessee whiskey by a mile. Repeal and it and Jack Daniel’s will also continue to be the best-selling Tennessee whiskey by a mile.

The upshot is that unless you’re invested in Brown-Forman, Diageo, or another Tennessee producer, this law isn’t going to affect you. On the merits, I lean ever so slightly to keeping the law as is. But if it’s repealed, I’ll be fine with that too.

There are, however, a couple thoughts to take away from this. One is that regardless of how this plays out, other states should not follow suit. As the boom in small distilleries continues there is going to be a temptation in other states to impose new legal standards on their own products. I’ve already heard talk from Oregon distillers about the possibility of creating a standard of identity for “Oregon whiskey.” Given the huge diversity of distillers here — we’re at more than 60 now — I can’t imagine a definition that will work for everyone and reflect established traditions, of which there really aren’t any. Trying to define one would be putting the cart before the horse.

As a bartender and spirits writer, I can deal with a special designation for Tennessee whiskey. But if I find myself having to remember 50 different state designations, regret for this sort of thing is going to set in very quickly. If I wanted to memorize a bunch of arcane place-related trivia I would have become a sommelier. I’d much rather see what individual creative distillers come up with, regardless of where they’re located.

Secondly, neither company strikes me as particularly sincere in their efforts to sway consumers, legislators, and the press. It’s hard to believe that Diageo executives are truly losing sleep over the plight of small Tennessee distillers whose creative impulses are being stifled. They’ve already taken plenty of heat for that stance and I won’t pile on here.

But how about Jack Daniel’s? They are pitching their brand as the stalwart defender of the Tennessee whiskey tradition. From their press release:

“When consumers around the world see ‘Tennessee Whiskey,’ they expect it is a premium product representing a world-class standard and utmost quality,” said Jack Daniel’s Master Distiller Jeff Arnett. “What we have here is nothing more than an effort to allow manufacturers to deviate from that standard, produce a product that’s inferior to bourbon and label it ‘Tennessee Whiskey’ while undermining the process we’ve worked for nearly 150 years to protect.” [...]

“Using quality grains, quality water, quality barrels and other natural ingredients has been the backbone of Tennessee Whiskey and, frankly, the bourbon industry for decades. Why in the world would we want to change that now by inserting artificial ingredients into our processes? And why in Tennessee would we willingly give the bourbon industry the upper hand in quality by cheapening the process we use to make our whiskey,” Arnett said.

And that’s all well and good, but I just looked online and there are six different varieties of Jack Daniel’s barbecue sauce, two steak sauces, and four different EZ Marinaders. EZ what now?

If you like marinating, you’ll love Jack Daniel‘s® EZ Marinader®, the country’s first ready-to-use liquid marinade in a flavor-sealed bag. In three EZ steps and without any mess, you are ready to cook! All the flavor with none of the fuss.

But it’s made with genuine Tennessee whiskey, right?

The product contains no alcohol. We use Jack Daniel’s® Tennessee Whiskey flavoring, which keeps the bold, hearty flavor associated with Jack Daniel’s®.

OK then. Jack Daniel’s also makes a honey liqueur. And this arrived in my mailbox this weekend:

This, to be fair, isn’t labeled Tennessee whiskey. It’s a “finely crafted cinnamon liqueur blended with Jack Daniel’s Tennessee whiskey.” Which is fine. I don’t begrudge anyone the right to make liqueurs with their spirits or to make money, the latter of which is pretty clearly the motive here. Cinnamon whiskey liqueur has become immensely popular and the company wants to get in on that. And though I don’t make a habit of drinking the stuff and haven’t done a side-by-side tasting, I can honestly say that Jack Daniel’s Tennessee Fire is better than the others I’ve tried in the category.

The problem is that Jack Daniel’s case for legally defining Tennessee whiskey is that its brand has worked hard for decades to build that standard and establish it with consumers around the world. To a large extent, they’re right. But they’re also willing to slap that brand onto everything from EZ Marinader® to cinnamon whiskey liqueur. And if you can tell me with a straight face that small distillers ageing whiskey in used bourbon barrels are a bigger threat to the pure image of Tennessee whiskey than these heavily marketed items, then the first shot of Tennessee Fire® is on me.

Say “Grrr…” to new growler regulations

Avid beer drinkers are familiar with the “growler,” a big jug used for transporting beer from a tap to one’s home. Filled and sealed properly, they keep beer fresh and carbonated for short-term consumption. (With caveats!) They’re great for when you want to bring home a beer that’s only available on tap or want to entertain guests. Living in Portland, one of the best beer cities in the world, I’ve taken advantage of this convenience many times.

In recent years, wineries have also begun selling their wine in kegs. In some situations — properly equipped restaurants, for example — this can more cost-effective and less wasteful than dealing with bottles. And, naturally, some places with wine on tap have also begun filling growlers. Oregon and Texas have both legalized wine growler sales in various venues and Washington is following suit. Here in Oregon, licensed wineries, restaurants, bars, and retailers are all free to fill growlers with wine.

Last week, however, the Tax and Trade Bureau weighed in on the practice. First the good news: selling wine in growlers is legal under federal law. Although states had gone ahead with wine growler fills, this was apparently ambiguous. It’s good to have it clarified.

Then there’s the bad news: Selling wine in growlers is going to involve a lot more red tape than selling beer. Under federal regulations, filling a growler with beer is considered filling a large glass and doesn’t impose additional burdens. (State laws, of course, may vary.) The TTB’s new ruling [pdf] clarifies that it’s not going to be so simple for wine. Specifically, the agency has determined that filling growlers with wine for off-premise consumption is considered bottling or packing for tax purposes, and that any person engaging in the activity must first qualify as a bottling house of taxpaid wine.

This means that before they can sell wine in growlers, businesses will have to apply to and receive permission from the TTB. And once qualified as a taxpaid wine bottling house, additional regulations will come into effect for wine growlers that don’t arise with beer:

1. Proprietors will have to “keep records of taxpaid wine received, bottled or packed, and removed.”

2. Proprietors will be responsible for measuring customers’ containers and ensuring accurate fill level and alcohol content.

3. Proprietors will have to label each container with “the name and address of the premises where bottled or packed; the brand name [...]; the alcohol content; the kind of wine and the net contents of the container.” They will also be required to remove or cover any preexisting labels on containers that don’t accurately describe the new contents.

It’s not clear to me yet exactly how burdensome these regulations are going to be, but the decision does seem to put the kibosh on dreams of making wine growler fills as ubiquitous and easy as they are for beer. With more restaurants and urban wineries offering wine on tap, growler fills were poised to be a new and convenient option. Here in Portland, for example, the forthcoming Coopers Hall announced plans to open with forty different wines on tap for on-premise consumption or take-away.

Assuming they stick with the plan, they’ll have to comply with these new regulations. I’m guessing that large retailers like Whole Foods will also find it worthwhile to qualify. But depending on how much of a hassle it is to do this, I expect many other restaurants with wine on tap may not bother.

The TTB notes that the Internal Revenue Code has different provisions for wine and beer and that this is the justification for the differential treatment with regard to growlers. Absent a change in the law, their hands may be tied. But from a policy perspective, it will be disappointing if this turns out to be an effective obstacle to the further adoption of wine kegs and reusable containers.

[Hat tip to Cole Danehower on Twitter, a great source for northwest wine news. Photo used under Creative Commons license courtesy of Kaitlyn Tierney.]

Multnomah County misleads bar owners

As a follow-up to my article in yesterday’s Oregonian about the failed attempt to include e-cigarettes in the state’s smoking ban, today I’m posting a memo Multnomah County officials have sent to local bars and restaurants. In it, they mislead business owners about the dangers of e-cigarettes, telling them:

State law does not currently prevent the use of e-cigs; however business owners are encouraged to include e-cigs in no-smoking policies. E-cigs pose serious health risks and challenges to enforcement of the Smokefree Workplace Law as it appears people are smoking indoors.

The letter then recommends that businesses include e-cigarettes in their no-smoking policies, adopt completely smokefree outdoor dining areas, and adopt a completely tobacco-free policy for their entire properties. (Here’s a PDF of the memo.)

There are valid reasons why a bar or restaurants might ban the use of e-cigs, such as the fact that some guests find them annoying. But county officials’ claim that the devices pose “serious health risks” is completely unsubstantiated. There’s not even much evidence that e-cigarettes are dangerous for users, much less for bystanders exposed to vapor secondhand.

There have been two recent studies on exposure to e-cigarettes in realistic indoor conditions. They are summarized here and here. Conclusion of the first:

… the quality and quantity of chemicals released in the environment [by vaping] are by far less harmful for the human health compared to regular tobacco cigarettes. Evaporation instead of burning, absence of several harmful chemicals from the liquids and absence of sidestream smoking from the use of the e-CIG are probable reasons for the difference in results.

And the second:

The study showed that e-cigarettes are a source of secondhand exposure to nicotine but not to combustion toxicants… Using an e-cigarette in indoor environments may involuntarily expose nonusers to nicotine but not to toxic tobacco-specific combustion products.

Even in the case of nicotine, exposure from real cigarettes was ten times higher than that from e-cigarettes.

Those are studies of indoor use. Multnomah County’s advice is to ban them outdoors too. The idea that indoor e-cigarette use could be harmful to bystanders is at least worthy of investigation, although the evidence so far is that it’s nothing to worry about. The idea that outdoor use presents serious health risks is wildly implausible.

This is yet another example of how the crusade against e-cigarettes is driven by unscientific alarmism rather than any empirical evidence of danger. County officials have shown that they have no credibility on the issue by misleading local business owners about the alleged risks.

Oregon’s war on vaping

The Oregon legislature recently failed to pass completely sensible restrictions on selling e-cigarettes to minor, an effort undermined by more extreme anti-smokers who were more intent on banning vaping in workplaces, bars, and restaurants. In today’s Oregonian, I write about lawmakers’ misguided attempt to include e-cigarettes in the smoking ban and their next proposal to impose new taxes on them. An excerpt:

I never thought I’d say this, but I’m actually getting nostalgic for the original smoking ban debate. Advocates exaggerated the dangers of secondhand smoke, but at least they made an effort to ground their views in science and demonstrate that non-smokers were being harmed.

The same cannot be said for those seeking to extend current bans to cover vaping. They’ll be the first to tell you that more study of e-cigarettes is needed. But why wait for results? They’re ready to ban first and ask questions later.

Read the whole thing here.