Stupid Laws Censor the Truth from Whisky Buyers
Liquor regulations in the U.S. and EU control how honest makers can be.
Late last year, the innovative Scotch whisky company Compass Box posted detailed information about two of its new limited edition releases, "Flaming Heart" and the whimsically named "This is Not a Luxury Whisky."
Like many other whisky brands, Compass Box doesn't distill their own spirits. They source whisky from other producers to create unique, proprietary blends. And like most companies making blended whisky, they tend to keep their precise recipes secret.
But for these two blends they took the unusual step of posting infographics on their website that provided detailed breakdowns of every component whisky, including the source distillery, tasting notes, the exact proportion each takes up in the blend, the type of cask used for ageing, and the length of time each whisky spent in barrel.
For the type of whisky drinker who's willing to shell out three figures for an exclusive bottle, Compass Box's complete transparency is a welcome departure from brands that obscure the provenance of their spirits with varying degrees of honesty. But at least one competitor viewed Compass Box's openness as a violation of liquor marketing regulations. An anonymous distiller contacted the Scotch Whisky Association, a trade group for Scotch, who in turn informed Compass Box that its detailed disclosure was illegal.
At issue was the listing of ages for the various whiskies in the blends. Under the laws of the European Union, producers of aged spirits have just two options for communicating age to consumers. One is to provide an age statement based on the youngest spirit in a blend, such that a Scotch advertising 12 years of age must be made entirely of whiskies that have spent at least 12 years in barrel, even if some components may be older. The other option is to provide no age information at all; these no-age-statement (or "NAS") whiskies are becoming increasingly common as heightened demand depletes distilleries' older stocks, forcing them to blend with younger spirits.
The regulations are intended to protect the reputation of aged spirits like Scotch and to prevent liquor companies from misleading consumers by adding tiny amounts of old spirits to a younger product and advertising the blend as older than it really is. But for boutique whiskies like some of Compass Box's limited releases, neither the traditional age statement nor the NAS option is a good fit. Take their Flaming Heart, for example. The oldest component is Scotch from the Caol Ila distillery aged for 30 years, making up 27.1 percent of the blend. The youngest whiskies, aged 7 years, comprise just 10.3 percent. The remainder is made up of 14- and 20-year-old Scotches. Under current law Compass Box could either call this a 7-year-old whisky, leaving consumers ignorant of the much older whiskies that make up the vast majority of the bottle, or provide no age information at all. Both options leave consumers uninformed about what they're buying.
Today, Compass Box has scrubbed the age information from the infographics. Consumers hoping to find it must look elsewhere. With the right Google search they might find it reproduced on a blog, a kind of samizdat for whisky nerds, but there's no legal way for Compass Box to directly communicate this truthful information to their target audience.
Censorship of truthful speech by spirit producers is not a problem limited to the EU. Although the type of information Compass Box would like to provide is legal in the United States, distillers here sometimes find themselves restricted by regulations that were written when the market had fewer specialty products than it does today. In 2013, for example, distillers of gin aged in barrels found the words "barrel aged" banned by the Tax and Trade Bureau, the federal agency that reviews spirit labels before they go to market. The ageing process itself is perfectly legal, but the federal code treats age statements on certain spirits, including gin, as misleading. Distillers have had to resort to work-arounds such as describing their gin as "barrel rested."
Mike McCarron, the owner of Gamle Ode aquavit in Minnesota, found himself ensnared in a similar issue last year when trying to get label approval for his "Holiday on Rye," a version of his holiday-spiced aquavit that had been aged in rye whiskey barrels. After several label rejections, he settled on adding a disclaimer to the back of the bottles that reads: "Labels do not allow for a full description of this aquavit, so please visit our website at gamleode.com for more information." But this just brought the TTB's attention to his website, and he had to remove any age-related information from that too.
"I still recall the stunned feeling I had when I realized all the best words needed to explain our aquavit easily and accurately to the public were prohibited, and could only be replaced with clumsier and more vague age and barrel wording or be silent completely, leaving folks in the dark," says McCarron. He is currently petitioning for a change to the regulations that would allow age statements on aquavit. (Disclosure: Though I don't work with Gamle Ode, other brands I've worked with in the spirits industry could choose to alter their labeling if this rule is changed.)
In the United States, at least, there may be legal grounds to challenge these limitations. "The Supreme Court has been intensely skeptical about laws that prohibit manufacturers or retailers from saying truthful things about their products," says Paul Sherman, an attorney at the Institute for Justice who specializes in First Amendment law. "Unfortunately, government often declares speech to be misleading even in situations where no one is being misled. And this routinely happens in the regulation of food and beverages."
"This problem isn't limited to the alcohol industry," says Sherman, taking note of a current Institute for Justice case challenging a Florida law that restricts use of the descriptor "skim milk" to milk that has had vitamin A artificially added to it. "What's happening in all of these cases is that the government is coming up with its own, idiosyncratic definitions for common terms and then declaring any other use of those terms—including uses consistent with their ordinary public meaning—to be inherently misleading. But under the First Amendment, the government is not the arbiter of our national dictionary, and it can't simply declare words off limits."
Compass Box is also pushing back against outdated regulations. Though the company had to cleanse its website of age information for these particular blends, company founder John Glaser has launched a transparency campaign to reform the laws. "Scotch whisky is one of the few products where it is prohibited by law to be fully open with consumers," Glaser writes on the Compass Box website. "We believe the current regulations should change."
Glaser's proposal would give producers an option to provide full disclosure about what is in the bottle, requiring those who choose it to give equal emphasis—in font, label placement, etc.—to every component of a blend, sequencing them by the volume of their contribution to the finished product, and forbidding any biased emphasis on the oldest components.
The reaction from other Scotch producers has been positive, at least in public. The owners of Glenrothes noted having a similar experience being forced to re-edit a video detailing the whiskies in their Vintage Reserve. Tomatin and Bruichladdich also posted statements expressing their support, with the latter committing to a transparency program that will allow consumers to enter a batch number from any bottle of their Classic Laddie expression to learn the age of every component.
All this public support may be enough to move the Scotch Whisky Association to action, but changing the relevant regulations will require EU-level reform. Getting traditional Scotch producers on board is just the first step. And many of them—especially those focusing on no age statement whiskies or proprietary blends—may see little to gain from taking the initiative to push for a third option.
But given the changing marketplace for spirits, with more distillers making non-traditional products and consumers clamoring for more information about what's flowing into their glasses, outdated laws in the U.S. and EU need to evolve. These regulations were once intended to protect consumers from misleading liquor marketing, but they're now perversely being used to silence producers who want nothing more than to be completely transparent about what they're selling.
Jacob Grier is a writer and bartender in Portland, Oregon, and the author ofCocktails on Tap: The Art of Mixing Spirits and Beer. He is also the founder of Aquavit Week.