The question “What is bourbon?” is a bit more complicated than might be anticipated, with thanks again to laws. “What is whiskey?” is a broader question and a little easier to answer. Whiskey is essentially, in its most basic form, a spirit distilled from grain. The type of grain(s) used, the location of distillation, and nature of aging, along with many other factors, then dictate the type of whiskey (or whisky), including broad categories such as Scotch, Irish, Canadian, or Japanese and innumerable subcategories.1
Whiskey, or whisky, as a general term, is defined by law in the United States as “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.”2
Bourbon is a type of whiskey, and many distillers remind us that “all bourbon is whiskey, but not all whiskey is bourbon.” In order to be bourbon, the whiskey must be made in the United States and must strictly meet these criteria:
Importantly, the word bourbon cannot be used to describe any whiskey not produced in the United States.4 Other countries have acknowledged this territorial naming right as well through several agreements, including the North American Free Trade Agreement, the United States–European Union Agreement on Nomenclature of Distilled Spirits, and the United States–Australia Free Trade Agreement, which all recognize bourbon whiskey as a distinct product of the United States.5
That does not mean, however, that corporate ownership must be American. Indeed, the major American bourbon distillers represent a global cross section of ownership. The very American-sounding Wild Turkey was owned by the French company Pernod Ricard SA until 2009, when it was acquired by the Italian company Davide Campari Milano S.p.A.6
A darling of bourbon enthusiasts over the past decade, Four Roses, has been owned by the Japanese company Kirin Company, Ltd., since the Canadian spirits giant the Seagram Company fell apart. Another Japanese company, Suntory, acquired Beam, Inc., in 2015, creating Beam Suntory, and Takara Shuzo Company owns the Ancient Age brands produced by Sazerac-owned Buffalo Trace. World spirits giant British-based Diageo owns the wildly popular Bulleit brand, along with the legendary Stitzel-Weller Distillery in Louisville, and in March 2017 opened its new distillery in nearby Shelby County, Kentucky. Brown-Forman remains as the only United States–based publicly traded bourbon distiller. Privately held Heaven Hill Brands is America’s largest private, family-owned producer of bourbon, and St. Louis–based Luxco, Inc., Lexington, Kentucky–based Alltech, Inc., and New Orleans–based Sazerac, Inc., round out the privately held American-owned major distillers.
While legally strict, the prerequisites to qualify as bourbon do not include many “rules” popularly believed to be law. One popular misconception (despite every Kentucky distillery tour guide’s correction) is that bourbon must be produced in Kentucky. In fact, bourbon can be produced in any state in the union, even Alaska or Hawaii—it just so happens that thanks to history and due to its perfect conditions, Kentucky is responsible for 95 percent of the nation’s bourbon. A large share of the remaining 5 percent is distilled just across the Ohio River border in southeastern Indiana, which shares many of Kentucky’s geographic characteristics.
There was a time, however, when bourbon was considered to be a Kentucky-only whiskey, as documented by court cases from the early twentieth century. In United States v. 50 Barrels of Whisky evidence was presented that any spirit labeled “Bourbon Whisky” must be distilled “from a fermented mixture of grain, of which Indian corn forms the chief part,” and be “distilled in the state of Kentucky.”7 Other courts recognized this early limitation too.8
Grain percentages have varied over time and from distiller to distiller. One article in 1905 claimed that bourbon is made from 60 percent corn and 40 percent “small grains”: “Bourbon whisky is made from corn, rye and barley malt in the proportion 60 per cent corn and 40 per cent small grains, either 30 per cent rye and 10 per cent malt, or 25 per cent rye and 15 per cent malt.”9 Still today, although the 51 percent corn rule is well-known, there is occasionally some confusion about the use of grains other than corn. Legally, however, the type of secondary grain used—after at least 51 percent corn—does not matter. Court decisions through the mid-twentieth century tended to mention rye and malted barley as secondary grains after at least 51 percent corn and also recognized the required use of new charred oak containers.10
True enough, the most-used secondary grain in bourbon is rye. But some of the most popular brands today use wheat as the secondary grain, and distillers sometimes experiment with other secondary grains. Most distillers also use a small percentage of malted barley as part of the mash bill. Bourbon with wheat as the secondary grain is often referred to as “wheated bourbon,” but that phrase has no distinct legal definition. Similarly, bourbon using rye as the secondary grain is often referred to as “high-rye” or “low-rye,” depending on whether the amount of rye grain exceeds somewhere around 15 percent, but again, there is no distinct legal definition, so today, Sazerac produces so-called high-rye bourbon containing less rye grain than the low-rye recipe used by Four Roses.
Storage in a “charred new oak container” has historically been a barrel, but the word used in the law is container. If a distiller chose to do so—and could make it watertight—bourbon could be aged in a charred new oak box, bucket, cone, or tetrahedron. Additionally, contrary to popular belief, American oak or white oak are not required; any type of oak will do under the regulation, but American white oak tends to provide the best seal and flavor (red oak is a popular choice for the rick structure inside aging warehouses because termites typically avoid red oak). The size of the oak container is also left to the discretion of the producer, but the standard in the industry is fifty-three gallons. Many craft distilleries use smaller barrels, and Heaven Hill recently released a special edition bourbon aged for fifteen years in sixty-five-gallon barrels. The keys are new, charred, and oak.
Another false rule is minimum aging. An uncountable number of weekend whiskey fans have proclaimed that bourbon must be aged a minimum of two years (some publications with sloppy authors and editors have helped spread this belief). Regrettably, the Supreme Court of Kentucky recently promoted this myth too.11 To the contrary, a charred new oak container could be filled with bourbon distillate and stored for any length of time, even just momentarily, and the distillate magically becomes “bourbon.” The source of the two-year belief is probably that if bourbon is aged in compliance with its rules for two or more years, it becomes “straight bourbon.”12
Even the word age has legal restrictions—producers can only count the period of time that bourbon is stored in charred new oak containers.13 A statement of age is not always required on a label either, but many consumers view higher age statements as a sign of quality. Age statements are only required if a bourbon has been aged less than four years. Conversely, any bourbon without an age statement has been aged for at least four years.14 If an age statement is used (whether involuntarily, because it contains bourbon aged less than four years, or voluntarily, because the label makes a reference to age or maturity for marketing purposes) and the bourbon is a blend of different-aged barrels, a label must state the age of the youngest bourbon in the blend.15 Producers also have the option of listing the respective ages of each of the barrels used in a blend, on a percentage basis of the final product.16
Bourbon rules also get a little more complicated because of what is not referenced in the general definition. For example, straight bourbon and any bottled in bond bourbon (which by definition will already be a straight bourbon) cannot contain coloring, flavoring, or other additives. Regulatory agencies have not always provided clear guidance regarding additives. For example, the Alcohol and Tobacco Tax and Trade Bureau (TTB) is the federal agency charged with promulgating regulations regarding labeling of distilled spirits and other alcoholic beverages, and it also reviews and preapproves distilled spirits labels to ensure compliance with applicable laws. The TTB has interpreted the regulations to prohibit additives in non-straight bourbon, but the actual regulations arguably provide this restriction only for straight whiskies.17 This disconnect, of course, sometimes leaves consumers wondering whether a bourbon that does not use the word straight might contain added artificial flavoring.
It could also lead a well-funded spirits producer to use additives in non-straight bourbon, arguing that a literal reading of the regulations allows it: “(i) such harmless coloring, flavoring, or blending materials as are an essential component part of the particular class or type of distilled spirits to which added, and (ii) harmless coloring, flavoring, or blending materials such as caramel, straight malt or straight rye malt whiskies, fruit juices, sugar, infusion of oak chips when approved by the Administrator, or wine, which are not an essential component part of the particular distilled spirits to which added, but which are customarily employed therein in accordance with established trade usage, if such coloring, flavoring, or blending materials do not total more than 2½ percent by volume of the finished product.”18 However, TTB’s interpretation is that the phrase “customarily employed therein in accordance with established trade usage” prohibits the use of additives because, since the late 1800s, bourbon producers fought hard to prohibit additives. So, now it is not “customary” for any bourbon to contain coloring or flavoring additives.
This fight to establish customary standards for bourbon in the late 1800s and early 1900s was led by producers of straight whiskey against blenders and rectifiers of what Col. E. H. Taylor Jr. called “imitation whisky.” The blenders and rectifiers fought back, claiming that their product was actually purer, and due to its substantially lower price, they captured a majority of the market share.19
Purity and the definition of bourbon were addressed by the Pure Food and Drug Act of 1906.20 In United States v. 50 Barrels of Whisky—a case enforcing the Pure Food and Drug Act—the court used whiskey to tackle the far-reaching constitutional issue of federal authority over the transportation of goods in interstate commerce.21 This case established the applicability of the new federal law to the transportation of spirits between states.
In that case, pursuant to the Pure Food and Drug Act, federal authorities seized fifty barrels of distilled spirits being transported from New Orleans to Baltimore. The court held that those barrels were misbranded as “Bourbon Whisky” because they really contained “a distillate of molasses with a slight infusion of sulphuric acid.”22 While 50 Barrels of Whisky helped end false branding and labeling, producers and rectifiers of grain distillate continued to use whisky and straight whisky on their labels.
The question “What is whisky?” was finally answered by President William Howard Taft in 1909, in a declaration known as the “Taft Decision.” President Taft had already served as U.S. Sixth Circuit Court of Appeals judge from 1892 to 1900, before his single term as president (1908–12), and later he served as U.S. Supreme Court chief justice (1921–30). While he served on the Sixth Circuit, President Taft gained some bourbon law experience in a case in which he found that James E. Pepper had been buying bourbon from other distilleries for years and had been mislabeling it as his own, all the while guaranteeing to the public that it was distilled by him as genuine and unadulterated Old Pepper.23 This experience helped guide President Taft sixteen years later when he was called upon, as commander in chief, to clarify the Pure Food and Drug Act by defining “straight,” “blended,” and “imitation” whiskey in the so-called Taft Decision.24
President Taft ruled that both sides could use the word whisky, but rectifiers had to call their product “blended whisky.”25 “Straight whisky” was protected for Col. E. H. Taylor Jr. and other distillers who made what we know today as bourbon. President Taft railed against the rectifiers who complained that his ruling would hurt their sales by saying that he “only insists upon the statement of the truth of the label” and it was no problem if “they lose their trade merely from a statement of the fact.”26 President Taft’s goal was to inform the public “exactly the kind of whisky they buy and drink. If they desire straight whisky, then they can secure it by purchasing what is branded ‘straight whisky.’ If they are willing to drink whisky made of neutral spirits, then they can buy it under a brand showing it; and if they are content with a blend of flavors made by the mixture of straight whisky and whisky made of neutral spirits, the brand of the blend upon the package will enable them to buy and drink that which they desire.”27
The question “What is bourbon?” is very well defined today, but in the American way there are a number of legally defined subcategories and non–legally defined marketing terms. Bottled in bond adds an additional set of requirements on top of those already existing for straight bourbon, but craft and small batch seem to have taken more of a foothold with consumers. The basic question of whether a spirit is bourbon should safely be answered on the label, but consumers should know the meanings of various label phrases.
Not all whiskey is bourbon. Some bottles of brown spirits in the whiskey aisle are not bourbon. Labels that do not contain the word bourbon (and more specifically, straight bourbon, which should be the goal) are not bourbon. Even looking solely for the word bourbon is dangerous because “Whiskey Distilled from Bourbon Mash” is not bourbon. One brand in particular bottles something called “sour mash whiskey” and “American whiskey”; those are not bourbon either. The worst offender may be 2018’s Crown Royal Bourbon Mash Blended Canadian Whisky, which gained TTB approval despite the apparent violation of the rule against using the word bourbon to describe a whiskey not produced in the United States. Crown Royal withdrew its label after an outcry from bourbon enthusiasts.
Look for straight bourbon. Straight bourbon is bourbon that has been aged a minimum of two years, with no additives other than pure water.28 The term straight whiskey came into existence just before the Civil War to distinguish natural barrel aging from artificially coloring and flavoring by rectifiers.29
Look for Kentucky bourbon. If Kentucky is in the name, the bourbon must have been produced in Kentucky from grains cooked, fermented, and distilled in Kentucky and aged for “a period of not less than one (1) full year.” It can still be removed and aged or bottled elsewhere, but then the name Kentucky cannot be used, at the risk of license revocation.30
Purity is pure marketing. Pure is a term that was more important in the late 1800s and early 1900s than it is today, due to rectifiers, and the courts helped define the term as being “free from extraneous matter; separate from matter of another kind; free from mixture, unmixed.”31 Since the early 1900s, courts held that adding neutral spirits to whiskey could not be called “pure” and that advertising it as pure was “grossly to deceive the public.” Some brands, like Pure Kentucky XO, still use the term, which is uncontroversial today.
What’s the proof? While bourbon must be bottled at a minimum of 80 proof,32 there is no maximum proof, and in recent years consumers have demanded bourbon uncut by water, as if it were straight from the barrel. Barrel strength (e.g., Four Roses Private Selection Single Barrel), barrel proof (e.g., Elijah Craig 12-Year Barrel Proof), and cask strength (e.g., Maker’s Mark Cask Strength) refer to bourbon that is not diluted with water before bottling. It can range from single barrels (like Four Roses) to large batches (like Wild Turkey Rare Breed).
Small batch is almost meaningless. Small batch is an extremely popular phrase, but it is pure marketing, and it means different things for different distillers and bottlers. On the one hand, some bourbon is bottled in ridiculously large batches or even continually dumped into massive tanks, which in many cases results in more flavor continuity. Some distillers or bottlers consider two to five barrels a small batch. Others use fifteen to twenty barrels. Still others use forty barrels or more. The lesson here is that the term small batch tells the consumer nothing at all, unless the actual number of barrels is disclosed. One of the more popular brand examples is Elijah Craig Small Batch.
Single barrel is slightly more meaningful. Single barrel should be obvious, but it is undefined, legally. For example, there is no regulation that would prohibit the mingling of bourbon from separate original barrels into one barrel and then bottled as coming from a “single barrel.” Bottle numbering (“bottle ___ of ___”) can be extremely helpful here to ensure that the total number of bottles is consistent with expected production given barrel age and evaporation loss. Wild Turkey’s Russell’s Reserve used the combined term small batch single barrel until 2015, causing some confusion because while neither term is legally defined, there is at least consensus that they mean different things. Four Roses Single Barrel is one of the more popular brands and is an excellent example of transparency because its label provides handwritten barrel and warehouse details.
But craft is totally meaningless. Craft is another undefined term that has become meaningless. To some producers craft is meant to signify artisan qualities, small production, and “farm to bottle” old-world techniques. To other producers it can be a marketer’s dream to be able to recast a high-volume, mass-produced brand as something not made in a factory. The Distilled Spirits Council (DISCUS), a national trade association for the major distilled spirits producers in the United States, sets a cap of 84,000 cases annually to qualify as a “small distiller,” the American Distilling Institute uses a 52,000 annual case cap, and the American Craft Spirits Association uses a whopping 315,000 annual case cap. Even the world’s largest producer of bourbon, Beam Suntory, uses craft in its Jim Beam Signature Craft series.
The use of the term finishing is the latest trend. “Finished in ______ barrels”— examples of which have included port, Pinot Noir, Cabernet Sauvignon, Zinfandel, Cognac, and sherry barrels—has long been used with other whiskies and is now a growing trend with bourbon. There are no regulations to govern finishing; therefore, open questions remain about whether whiskey is proofed down before finishing or whether it is blended with other barrels before finishing, and often there is no information about the provenance of finishing barrels, their prior use, or the length of finishing. Plus, some bourbon purists contend that finishing violates the core requirements for being called “bourbon” in the first place. But TTB has allowed use of the word bourbon so long as a label explains how it was finished. A popular brand example has been limited gift shop releases of Heaven Hill Select Stock, finished in Cognac barrels.
Finally, handmade should be ignored. Handmade is one of the more interesting marketing terms for bourbon. At one level bourbon cannot be literally handmade because distillation happens in a still, aging happens in barrels, and bottling happens on an automated line. On another level human hands still control the process and the barrels selected for bottling. Perhaps it was this tension that has led to class action lawsuits against, for example, Maker’s Mark for using the term handmade on its labels. In the end any consumer who believes that handmade literally means “made by hand” is insincere, and courts in Florida and California have dismissed the claims asserted against Maker’s Mark.33
Combine all of these facets, and the complexity of bourbon makes it all the more American. Bourbon has even been called “America’s Native Spirit” after Congress declared it to be “a distinctive product of the United States” in 1964:
Bourbon Whiskey Designated as Distinctive Product of U.S.
Whereas “Bourbon whiskey” is a distinctive product of the United States and is unlike other types of alcoholic beverages, whether foreign or domestic; and
Whereas to be entitled to the designation “Bourbon whiskey” the product must conform to the highest standards and must be manufactured in accordance with the laws and regulations of the United States which prescribe a standard of identity for “Bourbon whiskey”; and
Whereas Bourbon whiskey has achieved recognition and acceptance throughout the world as a distinctive product of the United States:
Now, therefore, be it
Resolved by the Senate (the House of Representatives concurring),
That it is the sense of Congress that the recognition of Bourbon whiskey as a distinctive product of the United States be brought to the attention of the appropriate agencies of the United States Government toward the end that such agencies will take appropriate action to prohibit the importation into the United States of whisky designated as “Bourbon whiskey.”34
Bourbon is unique, but America has always had its share of imitators. Bourbon takes time and patience to mature, but it is the American way to innovate and cut production time. Bourbon is strictly defined, but Americans always find ways to test boundaries and argue about the details. That’s bourbon.