If A Distiller 'Made' Whisky, Did They Actually Make It?

Words have meaning, are labels properly communicating to customers?

by Sean Fousheé

The other day I was browsing my local liquor store, looking for a couple of whiskies for an upcoming event, when I came across a distillery representative that was pouring a new bourbon labeled as a 'Texas Bourbon'. As shoppers huddled around the rep, wanting to learn more about the new Texas distillery, he stated proudly that this bourbon was 'made' in Texas. Knowing what I do about Texas craft distillers, including one that is winning award after award for their soon-to-be released Texas Bourbon, I had my doubts. Picking up a bottle I scanned the label and confirmed my suspicions; printed on the bottom of the back label were the words "Made by ________ in _______, TX" (distillery and city redacted). I looked up to see the rep, engaged with the crowd, continuing to extol the virtues of his new and exciting local craft distillery. As I put the bottle back on his table he looked over and asked me if I had any questions, and against my better judgement to just shake my head and walk away, I opened my mouth.

"So, y'all (this is Texas) distilled this bourbon locally?"

The throngs of would-be admirers scoffed at me, had I not heard him state clearly just seconds before that this Bourbon was made in Texas? The rep, on the other hand, gaped at me as though I had just grown a third eye — a knowing stare, as the truthful answer to my question would undermine the perception of the crowd. But why would it? Why does a seemingly obvious question have a not so obvious answer? And why would a truthful response from the rep kill his credibility? It all boils down to the meaning of the word 'made' ... if you 'made' the whisky, did you actually make it?

Wait, What?

"If you 'made' the whisky, did you actually make it?" I know, the question sounds like some fortune cookie, new age, hipster philosophical query designed to ponder the depths of the universe in search for deeper meaning in one's life. But in the world of whisky it's an honest question, one born from confusing label regulations that encourage misleading packaging and customer deception — sometimes deliberately. You see, in this case, the truthful answer to my question was 'no'. The Treasury Department (TTB, the US government agency in charge of approving labels) allows a company/distillery to print on the label that the whisky was "Made by" them even if they didn't distill the whisky in the bottle. Why is this allowed?

Texas Bourbon By Way Of Kentucky

The whisky on sale that day was actually sourced whisky, that is whisky purchased by the distillery from another source — most likely from a Kentucky distillery. The sourced whisky is then either bottled, blended with neutral grain spirit (NGS, think vodka), mixed with artificial flavoring, and/or put into a barrel to further mature at the purchasing distillery's warehouse. At no point in the production of the final bottle of whisky does the distillery whose label graces the bottle actually distill a drop of the whisky inside. The term 'made by' is allowed by TTB because the distillery altered the whisky in some fashion before bottling it (this is called being a spirit rectifier), slapping their logo on it, and shipping it to your local store; therefore, it's made by the distillery. However, this isn't what most casual whisky drinkers perceive of the liquid they're buying when they see the term 'made by' on a label.

"You keep using that word, I do not think it means, what you think it means."

In the world of distilled spirits there are only three words to look for on a label when deciding to buy a bottle: bottled, distilled, and made. According to the TTB these three words have specific meanings, and if you're not careful certain distilleries will use the technicalities inherent in the legal regulations to trick you — caveat emptor. To further educate whisky drinkers everywhere, here are the definitions as stated by the TTB:

"Bottled by."

On labels of domestic distilled spirits there shall be stated the phrase "bottled by", "packed by", or "filled by", immediately followed by the name (or trade name) of the bottler and the place where such distilled spirits are bottled. [Source: Code of Federal Regulations; Title 27: Alcohol, Tobacco and Firearms; Part 5 - Labeling and Advertising of Distilled Spirits § 5.36 (a)(1)]

"Distilled by."

Where distilled spirits are bottled by or for the distiller thereof, there may be stated, in lieu of the phrase "bottled by" [...] the phrase "distilled by", followed by the name, [...] and the address (or addresses) of the distiller. [Source: Code of Federal Regulations; Title 27: Alcohol, Tobacco and Firearms; Part 5 - Labeling and Advertising of Distilled Spirits § 5.36 (a)(2)]

"Made by."

Where distilled spirits are bottled by or for the rectifier [...] in lieu of the phrase "bottled by" [...] the phrases "blended by", "made by", "prepared by", "manufactured by", or "produced by" (whichever may be appropriate to the act of rectification involved) followed by the name (or trade name), and the address (or addresses) of the rectifier. [Source: Code of Federal Regulations; Title 27: Alcohol, Tobacco and Firearms; Part 5 - Labeling and Advertising of Distilled Spirits § 5.36 (a)(4)]

What this means is that a bottle of distilled spirit can display the term "bottled by" only if it was bottled by that company/distillery, and/or "distilled by" if that same distiller actually distilled the spirit. So far, so good. But look at that last regulation governing the use of the terms "blended by", "made by", "prepared by", "manufactured by", and "produced by". This regulation states that any distilled spirit sold by a rectifier — again, someone who alters a spirit either by using additives or cutting it (adding water) — must be labeled using the blended / made / prepeared / manufactured / produced terminology. Do you see how this verbiage can be misleading to the casual whisky drinker?

"Today only! Buy a bottle of Texas Blogger's Whisky, produced by Sean Foushee"

As an example, I could go out tomorrow and apply for a TTB license to be a spirit rectifier named "Blogger's Whisky", buy a barrel of matured whisky, add some water to cut the ABV, and sell it under my own label with the words "Produced by Sean Foushee". Most casual whisky drinkers would see that and immediately believe the liquid in that bottle was something I distilled, perhaps in my garage (not really, that would violate a slew of zoning regulations, as well as make my wife upset that she couldn't park the car). Distilleries, who currently, until their own spirit is matured to the point where they can sell it on the market, are acting as nothing more than rectifiers, and in some cases, misusing the language created by the TTB.

Now, it's not that I think all rectifiers and purveyors of sourced whisky are charlatans, in need of being run out of town on the next train dripping with tar and sporting a fowl hairdo. There are examples of distilleries using sourced whisky to keep the doors open that are upfront about the product they're selling, but it's those that purposefully deceive consumers that are doing harm, not only to themselves but to the rest of the industry — especially the craft whisky distilleries that are putting out original distilled products. These individuals relish using the language technicalities written into the government regulations to create a false perception of their product with consumers that are craving original or local distilled spirits. And that representative I ran into was one such example.

So, next time you're browsing the whisky aisle of your favorite store and you pick up a bottle from that hot new distillery you've heard about on Twitter or Facebook, take a good long look at the label, because you might find that the new whisky you're about to buy is most likely just a retread in a new wrapper.