Australian Distiller Labels Whiskey ‘Bourbon’; Others Use Term in Marketing

With “bourbon” becoming a strong buzzword, foreign distilleries are using the term in verbal and written marketing. And at least one distiller appears to be labeling its whiskey as bourbon. The 1964 Congressional Resolution made bourbon “a distinctive product of the United States,” giving the spirit geographical protection ratified by other countries.

Black Widow BourbonAustralia’s Bluestill Distillery is actually using “bourbon” on the label. In a September 2, 2011, Facebook posting, Bluestill Distillery said its Black Widow Bourbon: “Australian-made bourbon that seriously rivals those from Kentucky.” I have never tasted this product, seen it in person or viewed the back label, but the front label says the bourbon is a “product of Australia.” I’ve contacted Bluestill Distillery for more information.

The Kentucky Distillers Association and Distilled Spirits Council of the United States consider Black Widow Bourbon a violation of the free trade agreement with the US and Australia.  The matter has been reported to the United States Trade Representative’s office.

In a May 18, 2004, letter from Australia’s Minister for Trade Mark Vaile to U.S. Trade Representative Robert B. Zoellick, during the U.S.-Australian Free Trade Agreement discussions, the Australian government agreed to: “not permit the sale of any product as Bourbon Whiskey or Tennessee Whiskey, unless it has been manufactured in the United States according to the laws of the United States….” This letter was included in the notes of the 2005 U.S.-Australian Free Trade Agreement.

There are several other instances in which Australian producers have used bourbon in their marketing. Tiger Snake Sour Mash Whiskey distiller Cameron Syme has said the inspiration was “great Tennessee whiskeys and Kentucky bourbons.” But Syme understands bourbon is a geographic indicator, which is why he pursued “Sour Mash.”

In this YouTube.com interview, Whipper Snapper Distillery’s Alasdair “Al” Malloch describes the whiskey as “bourbon style.” On the website, the company says the company’s distilling history can be traced backed to Colorado and Scotland after World War II. Intrigued, I contacted the startup.

“We have been making bourbon in the US and will make it the same way here, so made as a bourbon-styled whiskey, but US law prevents it from being called Bourbon if it is made outside of the US,” Malloch wrote in an email. “Australia has ratified these laws through the Australian-US Free trade agreement. So, no, we will not be calling it bourbon or labeling it as bourbon.”

Look, I applaud Australia’s distilling culture and am all for its growth. I also love the idea of them pursuing bourbon-style whiskeys. This will give us some fun comparative tastings, but I can’t see the American bourbon industry allowing any loose use of the term “bourbon.”

Bourbon is hotter than it’s ever been. Imitation is the sincerest form of flattery, as they say, but it’s also the quickest way to land in the courtroom. Much like the American Single Malt producers stay away from using “Scotch,” it’s best foreign distillers tread lightly with the term.

 

1964 Congressional Resolution 

……Whereas among the standards of identity which have been established

are those for “Scotch whisky” as a distinctive product of Scotland,

manufactured in Scotland in compliance with the laws of Great

Britain regulating the manufacture of Scotch whisky for consumption

in Great Britain and for “Canadian whisky” as a distinctive

product of Canada manufactured in Canada in compliance with

the laws of the Dominion of Canada regulating the manufacture of

whisky for consumption in Canada and for “cognac” as grape brandy

distilled in the Cognac region of France, which is entitled to be so

designated by the laws and regulations of the French Government;

and

Whereas “Bourbon whiskey” is a distinctive product of the United

States and is unlike other types of alcoholic beverages, whether

foreign or domestic…..

 

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9 Replies to “Australian Distiller Labels Whiskey ‘Bourbon’; Others Use Term in Marketing”

  1. Eternal vigilance is the price of truth in advertising. (Nice use of two cliches, eh, Fred?)
    Don

  2. Fred, it is quite legal for bourbon to be sold at 37% (or 74 proof)in Australia and New Zealand so long as it has been shipped in bulk and bottled locally. Minimum spirit proof of 37% abv has been the legal minimum since 1916 due to War rationing and temperance appeasement. The regulations affecting bulk bourbon still operates under ANZ Food Standards and through a number of prior trade and treaty agreements with the US. These historical precedents allow bulk bourbon to be 37% abv; some countries it is higher, such as the Republic of South Africa I recall has a minium 43% abv

    As further evidence I would cite the bourbon companies themselves. The leading bourbon SKU in Australia is Jim Beam White Label and it is 37% abv. So too 1907 Jack Daniel’s White Label (released in 2011, well after the 2005 FTA) and many other bourbon labels who compete in the economy segment – excise per litre is around $65, so lower proof makes a brand more price competitive. Australia is currently America’s leading export market in volume and value for bourbon & Tennessee whiskey so even the bourbon manufacturers don’t want to disrupt their sales and consumer franchises. If they want +40% abv they export in-bottle.

    Black Widow quite a different case it has infringed the law as I read too. So too do occsional consignments of small conterfeit(Scotch) whisky labels,usually imported from Asia, and manage to escape Customs detection or scruntiny. Black Widow is made in country NSW with ethanol flavoured to resemble bourbon. And it does not taste like bourbon. It has miniscule sales. I’d be surprised if much more than 100 cases a year. Usually sold through fringe country liquor stores and bars. In this case the visibility of the internet has made this ant look like elphant so you would think the proprietor would be more careful. The company has been prosecuted in the past, read the individual as it a one man show (in 2009 by the NSW Food Authority) and may be under investigation at present as both State & Federal authorities have differing jurisdictions (‘we cannot comment on ongoing investigations’ was remarked when I was writing paper on this subject a few months ago). Breaches of trade practices and misleading labels must be held to account.

    Half a dozen small craft distillers in Australia occasionally make a batch or two of ‘American style’ whiskey. None taste like bourbon, nor claim to be bourbon. All are cellar door sales, not open sellers.

    1. Thanks for commenting, Chris, I have no doubt that these brands bottle at the 75 proofs. I have seen the labels, but that violates the U.S. law for bourbon, which states it must be bottled at not less than 80 proof. In the letters referenced in the story, Australia agreed to America’s code of bourbon with “no variation.” So, there seems to be some ignoring of a 2.5% of the law. The letters in full can be found at the World Trade Law website.

  3. I totally agree that if we do not protect our trademark products from imitators and industrial opportunists we will ultimately see the devaluation of this particular spirit within various consumer circles as rotgut and poorly crafted imitations are tried and quickly spit out.

  4. Interesting post. Someone told me once there was an outlaw Australian bourbon. Thanks for covering it.

    Note that as to the abv, the TTB regulations specifically state that they do not apply to distilled spirits for export. Therefore, there would be no violation of US law or standards in the sale of bourbon in Australia under 80 proof.

    1. SKU, thanks for posting.

      This isn’t a TTB issue. This has to do with the Australian-U.S. Free Trade Agreement, which the Aussie government agreed to adopt U.S. labeling laws. You can see the full reasoning in previous comments. However, Australian whiskey writer Chris Middleton, who posts everywhere these days, wrote me this: “This is a tangled web when it’s the bourbon companies that are the ones flaunting the law by selling and even introducing the 37% abv variants (2011 1906 Jack Daniel’s White Label, below). Even the letter you referenced was a 2004 preamble attachment to the January 1st 2005 FTA, and can be ambiguous in relation to the FTA. Australian law is 37% for spirits – brandy, rum, gin & whisky, it holds local legal precedence.”

      So, this is a big mess if you ask me.

  5. Fred, it’s a TTB issue in that the TTB defines how the laws of the United States are interpreted and those regulations have been adopted through the agreement.

    The letter you posted a link to does not say that Australia agreed to adopt US labeling laws. It says that it will not permit the sale of any bourbon or Tennessee whiskey unless it has been “manufactured in the United States according to the laws of the United States governing the manufacture of bourbon and Tennessee Whiskey…and complies with all applicable US regulations for the consumption, sale or export….”

    Thus, the side letter appears to incorporate by reference the TTB regulations, regulations which explicitly allow export whiskeys not to comply with the regulations therein. Underproof whiskey that is manufactured solely for export is manufactured in compliance with the laws and regulations of the United States.

    Now, there may well be other guidance or interpretations pointing in another direction, but based on that letter alone, that would be one possible argument that bourbon can be underproof in Australia without violating the trade agreement.

  6. Fred,

    I apologise on behalf of any Australian who makes a whiskey in Australia and calls it Bourbon – clearly it can’t be. I am embarrassed that an Australian would be trying to incorporate that geographic indicator into their product labelling, and even more so when the product is flavoured ethanol and not even a mixed grain whiskey. Shame on them, I say.

    Australian consumers require significantly more education as many people here do not know that Tennessee whiskey is different from bourbon – lots of people in Australia still call Jack Daniels a bourbon. We are doing our bit to re-educate them.

    As for ‘Tiger Snake sour mash whiskey’, we use corn, rye, wheat, and malt barley in our mash bill for this mixed grain sour mash whiskey, which is bottled at 43% ABV or 86 proof in American vernacular. The inspiration does come from the many great American bourbons and Tennessee whiskies – which is where my whiskey journey started. I am not trying to make a bourbon, I am making an Australian mixed grain whiskey. However when I use the term mixed grain whiskey, most Australians look at me blankly and don’t get it. We’re educating them, one at a time, and one day I hope there will be no need to explain that bourbon is a mixed grain whiskey and Tiger Snake is made in that style, but it is not a bourbon.

    The American distilling industry doesn’t have anything to be concerned about, the volume of mixed grain whiskey produced in Australia is currently that small that it would take a couple of years to fill half a shipping container. I recall that Jack Daniels alone produce 2000 barrels a day. Bourbon has a strong hold on the market here, and I think it’s place on the pedestal is safe. Aussies love their bourbon.

    While we’re talking about fair trade, as a micro distillery, we get letters of warning every year or so from the US Government via Visa and MasterCard warning us that we can’t send any of our spirits (single malt Whisky, vodka, gin, etc) into the US or we face massive fines and loss of the ability to use credit cards in our business. So, even when someone logs onto our website from within America and orders and pays for a bottle for purely personal use, we have to decline to send it or we get told the mighty US government and finance multinationals will fine us so much that it will close our business down. So much for fair trade – were not that much of a threat. 🙂

    Chris Middleton – thanks for your comprehensive coverage of the dubious history of the person marketing the flavoured ethanol as Bourbon. I hope the trade practices people take action againt them – it makes us all look bad. On a seperate note, I look forward to catching up with you soon – Tiger Snake is improving with each batch and the latest release batch 4 is very lovely indeed. I’m keen to get your feedback on our progress.

    Kind regards

    Cameron Syme – http://www.distillery.com.au – makers of Tiger Snake Sour Mash Whiskey, not a bourbon.

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