What to Expect During Alcoholic Beverage Recalls

By - January 30, 2017 | Alcoholic Beverage Law | Email Rob Pinson

Recalls of alcoholic beverage products can impact any part of the industry. Learn why the TTB may think a product recall is necessary and what you will need to do.

Last year, Constellation Brands issued a voluntary product recall for a small batch of their popular Corona Extra lager due to the potential of small glass particles in some bottles. Unfortunately, it seems to be a process the company is all too familiar with. For a massive company like Constellation Brands, a small-scale product recall is hardly damaging. But what if your brewery or distillery finds itself in a similar situation?

While you can initiate a product recall of your own accord, it usually starts when the TTB has reason to believe that an alcohol beverage is, or may be, adulterated. Before taking any recall action, the TTB first consults with the FDA. If the FDA identifies an urgent health hazard, or the TTB decides there are significant mislabeling issues, the TTB will contact the responsible party and recommend a product recall. As part of this process, you will need to create a strategy for removing affected products from the market, present this strategy to the TTB, and inform the TTB of the final results of the recall effort.

Technically, the TTB does not have statutory authority to require you to recall products, but they are far from powerless. They can notify trade associations and the public by any means they see fit, detain product shipments, and suspend or revoke permits and licenses. They can also examine financial records and other documentation relating to the manufacture, removal, or sale of the product in question. So, if they request that you conduct a product recall, it’s in your best interest to comply and act quickly.

After your recall strategy has been implemented, the TTB will follow-up by requesting a Recall Status Report to determine whether your recall efforts were effective. Generally, this report should include:

• Dates customers were notified
• Number of customers notified
• Number of customers responding
• Quantity of product returned and when this occurred
• Additional details and benchmarks attesting to the effectiveness of the recall

Once the TTB double-checks with the FDA and is satisfied with the results, they will advise you to stop your recall efforts. Unfortunately, a successful recall doesn’t guarantee that you’re in the clear – the TTB can still take administrative action against responsible parties after the recall is complete. If that occurs, you should contact a lawyer with experience in alcohol beverage law (if you didn’t already at the start of the recall process) to clarify your rights, liabilities, and which courses of action are best for your unique situation.

How Whisky Distillers use Peat Bogs to Create Unforgettable Flavors

By - January 23, 2017 | Alcoholic Beverage Law | Email Rob Pinson

Many Scottish distilleries utilize peat bogs to create whiskies with very distinctive flavors. Learn how “peaty whiskies” are made in this blog post.

Similar to our local regulations regarding the production of Tennessee whiskey, Scotland has legal requirements regarding the production methodology and labeling requirements for the country’s world famous style of the spirit. The Scotch Whisky Regulations of 2009 (an update to the Scotch Whisky Act of 1988) outline everything a distiller needs to know if they’re producing Scotch whisky. Like Tennessee’s House Bill 1084, Scotland’s production guidelines grant enough leeway for distillers to create Scotch whiskies with a wide variety of flavor profiles – several of which have intense smoky/umami/medicinal-tasting characteristics. While that type of bouquet is certainly a signature of the Scotch style, the unique method by which the flavor is achieved it is not actually required by the Scotch Whisky Regulations.

Large parts of Scottish land are covered in peat bogs. Peat forms when plant matter starts to decay, then stops due to specific environmental conditions. For centuries, the Scots have cut slices of peat out of the bogs, dried them, and used them as an energy source – like coal briquettes but faster-burning. Peat is also what gives certain Scotch whiskies (especially those from the Islay region) the unique flavor profile mentioned above. Once the grains are malted, they are dried over the smoke of a peat fire for about 30 hours.

Since bogs only accumulate peat at a rate of about 1 millimeter per year, it’s a semi-non-renewable resource. I’m not familiar with the laws protecting the peatlands, but I do know that many Scottish distilleries use methods to reduce their peat consumption. For example, instead of using whole briquettes, the Bowmore distillery grinds their peat into powder that is gradually added to a fire to produce just the right amount of peat smoke. Several of the more modern and industrialized distilleries use closed systems that pass the same smoke over the malted grains multiple times to ensure none of it is wasted.

So even though it’s not a legal requirement, many distilleries make their Scotch whisky by literally incorporating the country’s land into the process. Perhaps Tennessee’s distilleries could take inspiration from Scotland and incorporate wood from the tulip-poplar tree to put a little more “Tennessee” in Tennessee whiskey.

Space-Aged Whisky Could Soon Become a Reality

By - January 16, 2017 | Alcoholic Beverage Law | Email Rob Pinson

Distilleries have been aging whisky in microgravity to discover new flavor profiles. Learn how the space-aging process works in this blog post.

Whisky masters and enthusiasts are forever questing for tweaks to traditional distilling and aging methods to create unique flavors of the spirit. They’ll go to the ends of the earth in pursuit of whisky’s secrets – and when they run out of earth, they’re not afraid to head into space.

In 2011, the famous Ardbeg distillery in Scotland partnered with aerospace research company NanoRacks to test the effects of gravity (or lack thereof) on the whisky aging process by sending whisky to the International Space Station and aging it there for two and a half years. Since the available room on any space vessel is extremely limited, a traditional barrel was out of the question. Instead, newly distilled whisky and charred oak wood shavings were placed in a specially designed vial that kept the whisky and wood separated until they reached orbit and the seal between them was broken. A control sample was left back on Earth for comparison.

When the whisky returned to Earth in 2014, a battery of tests confirmed that the microgravity environment made a definitive difference. The ratio of wood extractive compounds found in the space-aged whisky was notably lower than the control sample, creating a dramatically different flavor profile. According to the results of the “organoleptic assessment” (aka, taste-test) released by Ardbeg, the space sample could summarily be described as more peaty and pungent. Whether that’s desirable or not is subjective – either way, it confirms the potential for space-aging to create an untold number of new and unique flavors for whisky.

Seemingly inspired by Ardbeg, the Suntory distillery in Tokyo sent samples of its whiskies to the International Space Station last August. Their experiment is broken up into two groups – one to be aged for a year, and the other to be aged for two or more years. The first group is scheduled to return to Earth sometime next month, but the results may not be publicized until sometime later.

Currently, outer space is identified by international law as one of the four global commons – meaning it is outside the territory and jurisdiction of nation states (the other global commons are the high seas, atmosphere, and Antarctica). So, if space-aged whisky catches on, it makes me wonder what the TTB’s regulatory response would be, if any…

The Lincoln County Process and the Law

By - January 09, 2017 | Alcoholic Beverage Law | Email Rob Pinson

If you want to call your product “Tennessee whiskey,” it must go through the Lincoln County process. Learn how to comply with the process here.

For many years, the legal definition of “Tennessee whiskey” was bland and straightforward. At the federal level, the North American Free Trade Agreement (NAFTA) requires that Tennessee whiskey be “a straight Bourbon Whiskey authorized to be produced only in the State of Tennessee.” However, we can be very particular about our whiskey. With that in mind, governor Bill Haslam signed House Bill 1084 back in 2013. This state-level law outlines specific quality and production standards that a distiller must follow if they want to call their product Tennessee whiskey. One of these production requirements is that the whiskey must be “filtered through maple charcoal prior to aging” – a process more popularly known as the Lincoln County Process.

If a distiller is calling their product Tennessee whiskey, but is found to not be meeting the manufacturing requirements for the spirit, they can have their license revoked or suspended for at least a year. Naturally, every distiller wants to follow these requirements to the letter – which would explain why I get so many questions about the specifics of the Lincoln County Process. “What ratio of charcoal-to-whiskey do I need for my stills?” “How long am I required to filter the whiskey for?” “Does the wood for the charcoal have to be grown in Tennessee?”

The truth is, House Bill 1084 deliberately omits these details to give distilleries flexibility. Imparting a specific flavor profile to any whiskey is an extremely delicate process. Changing the amount of charcoal or filtering time will change the flavor of the final product – so a lack of specific guidelines for the Lincoln County Process gives distilleries the flexibility they need to make their own styles of Tennessee whiskey.

Many distilleries have unique or proprietary takes on the Lincoln County Process. Jack Daniel’s first runs their charcoal through a grinder to get consistent bean-size pellets. The pellets are packed into vats 10 feet deep and the whiskey gets filtered by trickling through. The George Dickel distillery is similar, except they chill the whiskey first and allow it to fill a 13-foot vat instead of just trickling through.

Benjamin Prichard’s Tennessee Whiskey foregoes the Lincoln County Process entirely. They can still call their product “Tennessee whiskey” because they meet the exemption requirements outlined in Section 1(c) of the legislation. Ironically, this also makes them the only distillery in Lincoln County that doesn’t use the process!

As long as your Lincoln County Process involves some form of filtering through maple charcoal prior to aging – and you meet the other requirements from the law – your product can legally be called Tennessee whiskey in the eyes of the state. If you’re worried your filtration process could be interpreted another way, or you have other concerns regarding regulatory compliance, contact me and I’ll be happy to advise.

The Rising Popularity of ‘Accelerated Aging’ among Whiskey Distillers

By - January 02, 2017 | Alcoholic Beverage Law | Email Rob Pinson

The Rising Popularity of ‘Accelerated Aging’ among Whiskey Distillers

Most whiskey distillers have a love/hate relationship with time. On one hand, time can mature whiskey into an exceptional spirit. On the other hand, it takes so much time – 12 to 24 years in many cases. New barrels (which are a legal requirement for most whiskey in the U.S.) are quite expensive and take up storage space, so a distiller has to eat those costs and wait years to see a return on investment. Faced with those obstacles, it’s no wonder more distilleries are developing ways to accelerate the whiskey aging process.

As whiskey ages, it develops subtly complex flavors by absorbing compounds from the wood of the barrel in which it’s contained. Instead of waiting for this to naturally happen over several years, speed-aged whiskey uses a variety of techniques and technology to move flavors from wood to whiskey in less time. Among the simplest of these techniques is to use smaller barrels, which increases the surface area of the wood that is exposed to the whiskey. Tuthilltown Spirits in upstate New York takes this a step further by pumping low-frequency sound waves throughout their aging storehouse. Allegedly, the sound waves “agitate” the spirit, helping their award-winning Hudson Baby Bourbon reach sufficient maturation in only four months.

The Copper Fox Distillery in Virginia takes a different approach to increasing the surface area exposed to the whiskey. To create Wasmund’s Single Malt Whiskey, they load the distillate into normal-sized barrels. Then they add a mesh sack filled with toasted oak and apple chips, which works like a teabag to impart flavor. After about 12 months, they remove the mesh bag and put the whiskey in another barrel, which is heated and rolled several times over 2 months. Despite being aged for only 14 months, this whiskey was once “Best in Class” at the American Distilling Institute.

Right in our backyard, the O.Z. Tyler Distillery in Kentucky is planning to utilize a proprietary process called “TerrePURE.” According to the patent for the process, it basically uses ultrasonic energy and oxygen and temperature manipulation to create a better tasting whiskey in a shorter amount of time. Could accelerated aging catch on among Tennessee’s distillers?