By: Robert Scott Abney
Kentucky distillers craft a whopping 95% of the world’s bourbon supply, with approximately 9.1 million barrels currently aging across the state.[1] This is enough bourbon that if rationed among Kentucky residents, each person would receive two whole barrels.[2] With this kind of volume within the state, a major concern among Kentucky producers is compliance with all applicable laws. The United States’ Alcohol and Tobacco Tax and Trade Bureau (TTB) is tasked with the collection of federal excise taxes on alcohol, as well as compliance assurance with alcohol permitting, labeling, and marketing requirements.[3]
In 2018, recognizing the bourbon industry’s desire for regulatory certainty, the TTB proposed the reorganization and recodification of its regulatory standards.[4] To accomplish this, the TTB proposed Notice No. 176: Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages.[5] This proposal included a change to existing regulations that require bourbon to be aged in charred new oak containers to then require bourbon to be aged in “cylindrical oak drum[s] of approximately fifty gallons capacity used to age bulk spirits.”[6] This proposed rule was not well received, as approximately 700 individuals, distillers, trade associations, and one U.S. Senator, provided their opposition to the proposed change.[7] Ultimately, the TTB decided not to move forward with its proposed definition.[8]
Originally, bourbon barrels were forty-eight gallons, but wood shortages resulting from World War II led the industry standard to be upped to fifty-three gallons.[9] While big brands predominately utilize this industry standard, many remained quiet during the TTB’s request for commentary regarding Notice No. 176.[10] Brands such as Buffalo Trace have experimented with smaller barrels, in 2012, aging 6-year bourbon in significantly smaller-sized barrels of various sizes.[11] While Buffalo Trace’s 2012 efforts were to no avail, as none of the whiskeys were released to the public,[12] perhaps the distillery was onto something; as today the bourbon “renaissance” is driven by premium small batch and single barrel brands.[13]
Credit: https://commons.wikimedia.org/w/index.php?curid=14955249
The TTB’s decision to not alter the definition of charred, new oak container is a predominantly a welcomed one, as the bourbon boom has led to more than a three-fold increase in bourbon production since the turn of the century.[14] Joseph Magliocco, president of Michter’s Distillery, attributes a majority of this growth in bourbon appreciation to “cocktail culture.”[15] This increase in demand has resulted in forty-nine new distilleries in the bluegrass state in the past decade, for a total of sixty-eight total distilleries, up from just nineteen in 2009.[16]
While bigger brands still prefer the larger barrels due to practicality concerns, smaller craft distillers often opt to use smaller barrels-some as small as five gallons. Colin Spoelmen, head distiller at Kings County Distillery in New York, claims using smaller barrels, “gives a fuller, richer flavor to a whiskey in the one to three-year mark, which is usually what first comes to market.”[17] Although smaller barrels provide less overall surface area, they allow for a more efficient flavor infusion, a result of a better surface area-to-liquid ratio.[18] The American Distilling Institute stated smaller barrels can turnout “an excellent product in only three to six months.”[19] This enables start-up distilleries to begin selling bourbon in under a year, while simultaneously aging bourbon in larger, more “traditional”-sized barrels to be sold at a later date.[20]
Some critics argue that small barrel distilling should not be permitted as the typical fifty-three-gallon barrel has become somewhat of an industry standard.[21] Big brands argue that the fifty-three-gallon industry standard creates a degree of predictability for consumers.[22] However, this critique fails to consider that distilleries have been using barrels of different sizes for years. For example, Republic Restoratives ages its bourbon in 132-gallon puncheon barrels, and Balcones Distilling in Waco, Texas uses fifty-nine gallon barrels in an attempt to minimize the angels’ share,[23] a common problem in hot, dry climates.[24] In response to the proposed amendment, Balcones Distilling’s master distiller, Jared Himsstedt stated, “To spend too much energy and time on something like barrel size seems a waste of time, or at least misplaced priorities.”[25] Additionally, at least one distiller in Florida uses different sized barrels when aging its whiskey, as there is no data on how Florida’s hot, humid climate impacts the aging process.[26] Furthermore, critics of small barrel bourbon distilling fail to consider whether consumers of small barrel bourbon want a cookie-cutter flavor profile, over a unique flavor experience.[27]
For innovation’s sake, the TTB’s decision against redefining the barrel required to distill bourbon is one to raise a glass to. In the future, the TTB should continue to promote the bourbon boom with proposals that encourage distilleries-both small and large-to innovate and create, while remaining true to bourbon’s historic roots. Whether a five-gallon barrel or a 132-gallon puncheon, Raymond Chandler said it best, “There is no bad whiskey. There are only some whiskeys that aren’t as good as others.”[28]
[1] Kentucky Bourbon Quick Shots, KY Bourbon, https://kybourbon.com/wp-content/uploads/2020/02/2020-Quick-Shots.pdf [https://perma.cc/4DWN-LN5G] (last visited Oct. 8, 2020).
[2] Id.
[3] About TBB, Alcohol and Tobacco Tax and Trade Bureau, https://www.ttb.gov/about-ttb [https://perma.cc/GC63-96TD] (last visited Oct. 8, 2020).
[4] Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages, 56 Fed. Reg. 227 (proposed Nov. 26, 2018).
[5] Id.
[6] Id.
[7] Modernization of the Labeling and Advertising Regulations for Wine, Distilled Spirits, and Malt Beverages, 85 Fed. Reg. 64 (2020).
[8] Id.
[9] Tony Sachs, Do the TTB’s Proposed Regulatiions Leave Craft Distillers Over a Barrel, Whiskey Advocate (Aug. 8, 2019) https://www.whiskyadvocate.com/ttb-barrel-size-proposed-regulation/ [https://perma.cc/V775-ZPJ3].
[10] Id.
[11] Id.
[12] Id.
[13] Supra note 1 (Small batch refers to a product of mixing select barrels of whiskey that have matured into a specific style. While single barrel refers to whiskey drawn from one barrel that has not been mixed with any other whiskeys).
[14] Kentucky Bourbon Production Sets 48-Year Record, Willett, https://www.kentuckybourbonwhiskey.com/news/kentucky-bourbon-production-sets-48-year-record/ [https://perma.cc/3DMR-XGE7] (last visited Oct. 8, 2020).
[15] Kellie Ell, Bourbon is Winning in Millenial ‘Cocktail Culture,’ says Distillery President, CNBC (Jul. 15, 2018, 9:48 PM), cnbc.com/2018/07/13/whiskey-sales-in-us-are-up-bourbon-more-popular-among-millennials.html [https://perma.cc/ECD5-NS75].
[16] Janet Patton, After Decade of ‘Explosive Growth, What’s Next?, The Herald Leader (Feb. 6, 2019, 8:59 AM), https://www.kentucky.com/lexgoeat/bourbon/article225559280.html.
[17] Sachs, supra note 9.
[18] Many Regional Distillers Use Small Wooden Barrels for Aging, Redhead Barrels https://redheadoakbarrels.com/many-regional-distilleries-use-small-wooden-barrels-for-aging/ [https://perma.cc/RRG3-VUGL] (last visited Oct. 8, 2020).
[19] https://whiskeyreviewer.com/2012/09/small-barrel-aging-101/#google_vignette
[20] Richard Thomas, Small Barrell Aging 101, Whiskey Reviewer (Sept. 12, 2012), https://whiskeyreviewer.com/2012/09/small-barrel-aging-101/#google_vignette [https://perma.cc/S3VZ-G8AW].
[21] Sachs, supra note 9.
[22] Id.
[23] What is Angel’s Share, Distillery Trail (Nov. 15, 2016), https://www.distillerytrail.com/blog/what-is-the-angels-share/ [https://perma.cc/F77N-UYS7] (Angels’ Share refers to the amount of distilled spirits lost to evaporation from the barrel or cask into the air as the whiskey ages).
[24] Whiskey 101 – What is Angel’s Share, Southern Distilling Company (Oct. 30, 2017), https://www.southerndistillingcompany.com/whiskey-101-angels-share/#0 [https://perma.cc/MN8Z-R4Y4].
[25] Sachs, supra note 9.
[26] Id.
[27] Id.
[28] Raymond Chandler, Good Reads, https://www.goodreads.com/quotes/18338-there-is-no-bad-whiskey-there-are-only-some-whiskeys [https://perma.cc/7A5L-PY9K] (last visited Oct. 8, 2020).