This Week in Weird Federal Crimes: Don’t Mess with Kentucky (Bourbon)

Collin Hart, Associate Member, University of Cincinnati Law Review

As October begins and the brisk fall air arrives, Many Americans will look for ways to keep warm. For some this will mean a nice sweater or a warm pumpkin spice latte. Others may seek the warm burn of a nice whiskey, possibly while they sit by a roaring fire. As this is Cincinnati, these regal individuals may seek the comfort of our great southern neighbor’s finest export–Bourbon whiskey.

While there is no question that Bourbon is the greatest of all whiskeys, many do not know the difference between Bourbon and other types of whiskey, or that other types even exist. Luckily the good folks at the federal government are here to help. An entire section of Title 27[1] of the Code of Federal Regulations is dedicated to establishing the “standards of identity” for many different types of “distilled spirits,” including whiskey.[2] Section 5.22 lists the definitions for several different types of “whisky” including “Bourbon whisky,” “Corn whisky,” “Scotch whisky,” “Irish whisky,” and “Canadian whisky.”[3] Bourbon whiskey is defined as whiskey produced at “not exceeding 160 proof from a fermented mash of not less than 51 percent corn, rye, wheat, malted barley, or malted rye grain” and “stored in charred oak containers.”[4] Thus, Bourbon whiskey mainly boils down to the type of mash and storage container used. Not, at least in the eyes of the federal government, whether the whiskey was produced in Bourbon County, Kentucky.

Now a reasonable person may ask why the federal government has an entire regulatory section devoted to the definitions of different types of spirits. Well, Section 5 of Title 27 includes all regulations related to advertising and labeling of distilled spirts.[5] So Section 5.22 essentially establishes the definitions of different types of liquors for labeling and advertising purposes. Furthermore, Section 5.22 definitions are not simply for informational purposes but are accompanied by criminal penalties. 27 U.S.C § 205 states that “[i]t shall be unlawful for any person engaged in business as a distiller … or other producer, or as an importer or distributer, of distilled spirits … to sell or ship … or otherwise introduce in interstate or foreign commerce … any distilled spirits, … unless such products are bottled, package, or labeled in conformity with such regulations, to be prescribed by the Secretary of the Treasury, with respect to packaging, … and labeling.”[6] Because Section 5 of Title 27 is promulgated pursuant to the Department of the Treasury, the regulations referenced in 27 U.S.C § 205  include the technical distinctions between types of spirits articulated in 27 C.F.R. § 5.22.

In summary, it is a federal crime for any entity engaged in business as a producer, importer or distributer to label any distilled spirit as Bourbon whiskey unless the spirit was produced from a fermented mash of at least 51% corn, rye, wheat, malted barley, or malted rye grain and stored in charred oak containers. While it may seem silly for the government to criminalize the mislabeling of Bourbon, it is probably smart of the government to ensure that consumers know exactly what they are ingesting when they drink a potentially dangerous substance like alcohol. Long story short, the federal government does not mess around when it comes to Bourbon whiskey!

[1] The Title containing alcohol, tobacco, and firearm regulations.

[2] See 27 C.F.R. § 5.22 (2018).

[3] Id. at 5.22.

[4] Id.

[5] See 27 C.F.R. § 5.

[6] 27 U.S.C. § 205 (2018).



Photo taken from Wiki Commons.


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