Marc E. Sorini is a partner in the
law firm of McDermott Will & Emery LLP, based in the Firm’s Washington D.C. office. He leads the Firm’s Alcohol Regulatory & Distribution Group, where he concentrates his practice on regulatory and litigation issues faced by supplier-tier industry members. His practice for craft distillers includes distribution agreements, distribution counseling and litigation, product formulation, labeling, promotional compliance, compliance strategy, and federal and state tax and trade practice enforcement defense.
the LEGAL ASPECTS
And because every state (and even
of BARREL AGING
DISTILLED SPIRITS BY MARC E. SORINI
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some local) government exercises its own regulatory authority over distillery operations, distillers also should check with state authorities to determine any notification or pre-approval requirements that might arise under state law.
WHISKEY Barrel aging is critical to establishing a product as whiskey
istillers have used barrels to age whiskies, brandies and other under federal law. Specifically, most whiskies (with the exception distilled spirits for centuries. Today, American craft distillers of corn whiskey) must be stored in oak containers in order to
increasingly seek to innovate and extend their product offerings qualify as “whiskey” under TTB regulations. by barrel aging spirits, both traditional (e.g., whiskies) and non-
Barrel aging is so fundamental to the classification of a spirit
traditional (e.g., barrel-rested cocktails). Not surprisingly, the as whiskey that TTB regulations require an age statement on the thicket of alcohol beverage laws and regulations impose certain label if any of the whiskey was aged for less than four years. For requirements and place certain limits on the use of barrels. This older whiskies, age statements are optional labeling information. article briefly outlines some of the most important.
COMMENCING BARREL USE
In either case, TTB regulations establish a bewildering set of rules for the form of label disclosure, depending on the type of
whiskey involved, the presence of other whiskies, the use of reAs U.S. distillers surely know, the Alcohol & Tobacco Tax & used barrels, and other factors. In all cases, any age statement Trade Bureau (TTB) closely regulates the use of equipment within must disclose the age of the youngest whiskey in a blend. distilleries. Until recently, this included a requirement that TTB pre-approve the installation and use of new equipment, such as
LABELING
barrels. Happily, in 2011 TTB revised its regulations governing
TTB only permits “age” statements on the labels of whiskies,
operations at “distilled spirits plants.” The new regulations no rum, brandy, and tequila. When neutral spirits are used, the longer require pre-approval of new equipment, but they still resulting “grain spirits” can disclose their storage in oak require the distiller to submit a “letterhead notice” to TTB before containers, but informal TTB policy does not permit the term making a change such as adding a barrel-aging operation to the “aged.” Finally, for other classes and types of distilled spirits – distillery premises. Note, however, that TTB regulations still including gin, liqueurs, cocktails, flavored spirits and so-called require prior approval if the area for barrel aging falls outside the “specialties” – TTB regulations outright prohibit age statements. existing bonded premises of the plant or if the plant’s existing registration does not authorize warehousing.
In practice, the prohibition on age statements for many classes and types does not prohibit all references to using oak barrels in the
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