COLA Help for Blended Whiskey Products

[Patio29Dadio]

I am about ready to tear my hair out going back and forth with TTB over our COLA permit for a blended bourbon and rye product.  Their needs correction responses are contradictory and don't seem to apply to other similar products.   Does anyone have the name and contact information for a distilled spirits COLA expert consultant I can hire for help here?    

[TexCF]

I've never worked with him personally, but Lehrman and his team handle a ton of COLAs. www.bevlaw.com

[jeffw]

Have you managed to get someone on the phone from the TTB?  I love a good black hole of contradictory responses, but usually you can get it sorted without paying someone.  A consultant can give you advice, but not necessarily get a COLA approved.  

[JNorris]

19 minutes ago, jeffw said:

Have you managed to get someone on the phone from the TTB?  I love a good black hole of contradictory responses, but usually you can get it sorted without paying someone.  A consultant can give you advice, but not necessarily get a COLA approved.  

True.  

They used to have a QA email address where you could send COLAs to someone for them to review, but they have since made it SO much easier to get a hold of them.  You know, leave a message and no one ever calls you back and no more email addresses out there, just some contact form that no one ever responds to.  I might be able to dig up the email address, but I fear it won't work anymore.  Calling and waiting on hold is your best bet.

[Julius]

Just a heads up, bourbon and rye blended together are not a “Blended Whiskey.”

Blended Whiskey is a class/type that refers to a blend of whiskey with something else (NGS) and requires a formula approval.

 

 

[dhdunbar]

I consult on TTB matters and a consultant I avoid both labels and formulas.  My reason is simple.  I want to keep my hair! 

I can tell you what the regulations require, but I can't tell you what a specialist may say is required (and I can be wrong too, but ...).  Next,  I could never estimate how much time I would need to spend to get things straight and you would not want to pay me what I would charge to do that if we ran into the sorts of problems that can often arise.  It is best if you can fight the fights yourself.  Conisder what the following would cost, and which I offer here because I hope it is of general interest.

You state that you want to blend a bourbon and a rye whiskey.  I would prefer that you say  mix the bourbon and rye.  It avoids confusion with standards.

"Blend" is a rabbit hole.  Blended whiskeys are standard of identity products.  Although the standards are ostensible a way of informing the consumer, they confound even the experts.  Too many bottlers have too many problems too many times when seeking a COLA. 

Okay, so get out the Excedrin.  As you may know, there are two standards that use the word blend.  They are:

A blend of straight whiskies (blended straight whiskies) is a mixture of:

• Straight whiskies which does not conform to the standard of identify for “straight whisky.” 

Now, if the bourbon and the rye both qualify as straight whiskeys, but the mixture does not - that is how I read the curious straight whiskeys that don't confrontation to the straight whiskey standard language,  because anything else is nonsensical,  then you have a blend of straight whiskeys. That is the answer to your question.  But if they don't, then what you mix is not a blend of straight whiskeys. 

Next, stripping out some embedded phrases that complicate, blended whiskey is a mixture which:

• Contains straight whisky or
• A blend of straight whiskies at not less than 20 percent on a proof gallon basis ... and,
• separately, or in combination:
• whisky or neutral spirits.

Blended whiskey must have straight whiskey and also must have either whiskey or neutral spirits, or both whiskey and neutral spirits.  So if the bourbon is straight and the rye is not, then you  have a blended whiskey, which to some means it has NSG, but it doesn't necessarily mean that.. 

Next - , this is not clear, but TTB's new regulations want to make it clear - if a spirit conforms to a standard, then you must use that as the standard on the label.  So, if it meets the standards for either a blend of straight whiskey or blended whiskey,  you so designate it.  But if it doesn't?

Look, it is obviously whiskey.  So we start to eliminate.  It is not bourbon or rye (unless the 51% requirement for corn and rye respectively is somehow realized in the blend -  and then I'm not sure, if we could say that there has been no change of class and type in the spirit that comes in at 51% or more - it is not whiskey distilled from either mash, it is not light, or spirit whiskey and it sure as hell isn't Scotch or Irish or Canadian, so guess what, if it isn't entitled to one of blended designations, then it is just plain whiskey - what else is left?  It is an alcoholic distillate from a fermented mash of grain produced at less than 190° proof in such manner that the distillate possesses the taste, aroma, and characteristics generally attributed to whisky, stored in oak containers (except that corn whisky need not be so stored), and bottled at not less than 80° proof.  And you tell the story of your mixture in the text that you add.

I don't have the energy to fight that fight with AFLD.  But I think I am correct.  TTB may not agree.  And I can guarantee, they don't care what I think!

 

 

 

 

[Patio29Dadio]

1 hour ago, Julius said:

Just a heads up, bourbon and rye blended together are not a “Blended Whiskey.”

Blended Whiskey is a class/type that refers to a blend of whiskey with something else (NGS) and requires a formula approval.

I have two products, a blended bourbon whiskey and a blended rye whiskey.  As I can tell, both are qualified as a separate type under the class of Whiskey:  

BLENDED BOURBON WHISKY OR BOURBON WHISKY - A BLEND and BLENDED RYE WHISKY OR RYE WHISKY - A BLEND

Definition: Blended whisky produced in the U.S. containing not less than 51% on a proof gallon basis (excluding
alcohol derived from added harmless coloring, flavoring or blending materials*) straight bourbon [or straight rye] whisky.

My fanciful names are "Something Blend Bourbon Whiskey" and "Something Blend Rye Whiskey".  Under that name on the front label is "A Blend of Straight Bourbon Whiskeys" and "A Blend of Straight Rye Whiskeys" respectively.   On the back label is a bit of puffery reading: "[fanciful name] is a marriage of one or more straight bourbon [or rye] whiskeys."

I have been around the block with TTB with several "needs corrections" that seem to contradict the previous.

This last one is:

• A class and type such as 'Rum," "Tequila," "Brandy," etc. must appear on your brand label. 27 CFR 5.22 and 5.35

• Additional Clarification:
• Per your remarks, "This product is a blend of one or more Straight Rye Whiskeys." If that is the case, the correct designation is "A Blend of Straight Rye Whiskies," or "Blended Straight Rye Whiskies."

• The information included in your attachment(s) and/or the "notes to specialist field" has been reviewed; however, the correction(s) that we requested must still be made.

• Additional Clarification:
• Your Brand Label contains two designations. If the spirit is "A Blend of Straight Rye Whiskies," (or "Blended Straight Bourbon Whiskeys") that would be the designation. The Brand Label should not contain two different designations. ("Rye Whiskey" and "A Blend of Straight Rye Whiskeys"

And finally and brand new one...

• Your product requires a state of distillation statement. The state of distillation may appear as: "DISTILLED IN ___" or the state may appear with the class and type, such as "___ STRAIGHT BOURBON WHISKY". 27 CFR 5.36(d)

• Additional Clarification:
• If "California" will appear on the label, than a State of Distillation statement should also appear on the label please.

The problem here is that the source of this final product is from more than one distillery and more than one state.  The back has the "bottled by us" text.  The front of the label includes the word "California" because that is where my distillery is located.

I look at High West for an example and even though they have been distilling 0% of their juice, they have no specific "distilled by" and Utah, Park city on their label. 

From my perspective I think I must be getting a young and confused analyst assigned me, because nothing makes sense per the regs and standards I can find. 

BLEN

[JailBreak]

12 hours ago, Patio29Dadio said:

My fanciful names are "Something Blend Bourbon Whiskey" and "Something Blend Rye Whiskey".  Under that name on the front label is "A Blend of Straight Bourbon Whiskeys" and "A Blend of Straight Rye Whiskeys" respectively.   On the back label is a bit of puffery reading: "[fanciful name] is a marriage of one or more straight bourbon [or rye] whiskeys."

I'm no expert but what it seems like what the TTB specialist is saying is, your fanciful name is suggesting that your product is either a bourbon whiskey (let's stick with one for sake of clarity) or a blended bourbon whiskey which is an entirely different S.O.I. than a 'blend of straight bourbon whiskeys'. 

As per the CFR, since you are mixing straight bourbons from two different states it would fall under the designation of 'blended straight whiskey'. So I would suggest changing your fanciful/brand name in a way that doesn't allude to something other than 'blended straight whiskey'.

12 hours ago, Patio29Dadio said:

And finally and brand new one...

• Your product requires a state of distillation statement. The state of distillation may appear as: "DISTILLED IN ___" or the state may appear with the class and type, such as "___ STRAIGHT BOURBON WHISKY". 27 CFR 5.36(d)

• Additional Clarification:
• If "California" will appear on the label, than a State of Distillation statement should also appear on the label please.

The problem here is that the source of this final product is from more than one distillery and more than one state.  The back has the "bottled by us" text.  The front of the label includes the word "California" because that is where my distillery is located.

This seems to have been triggered by you putting California on the label. 

(d)State of distillation. Except in the case of “light whisky”, “blended light whisky”, “blended whisky”, “a blend of straight whiskies”, or “spirit whisky”, the State of distillation shall be shown on the label of any whisky produced in the United States if the whisky is not distilled in the State given in the address on the brand label. The appropriate TTB officer may, however, require the State of distillation to be shown on the label or he may permit such other labeling as may be necessary to negate any misleading or deceptive impression which might be created as to the actual State of distillation. In the case of “light whisky”, as defined in § 5.22(b)(3), the State of distillation shall not appear in any manner on any label, when the appropriate TTB officer finds such State is associated by consumers with an American type whisky, except as a part of a name and address as set forth in paragraph (a) of this section.

To me it seems like there is two remedies. 1. Remove California from the front of the label since normally you wouldn't have to put the state of distillation for a blend of straight whiskeys. 2. Put the states of distillation.

Hopefully this helps!

[Julius]

Blended Whiskey =/= A blend of straight whiskeys.

I believe Jailbreak has given you sound advice. I would love to know how you finally get approval (and see the label).

[Patio29Dadio]

Thanks JailBreak and Julius.  I appreciate your help and advice.

1. As I understand, STRAIGHT BOURBON WHISKY can be a blend of more than one STRAIGHT BOURBON WHISKY as long as from the same state.  This then supports the distilled in state labeling requirement. 
2. However, I was going for BLENDED BOURBON WHISKEY which requires only a minimum of 51% of straight bourbon bourbon whiskey and can include harmless flavoring and coloring (which I will never add).
3. The alternative is A BLEND OF STRAIGHT BOURBON WHISKIES which is the actual product I am intending to make but originally TTB did a "needs correction" that sent me to the previous.

Looking at High West American Prairie Bourbon, they are classified as STRAIGHT BOURBON WHISKEY BLENDS (#3 above I believe).  

And in terms of labeling, for the High West product the Fanciful name does not include the word "straight" and the tag line below the fanciful name is exactly as mine "A Blend of Straight Bourbon Whiskeys".    Also, there is no "state of distillation" on the labels and there is a "Bottled by High West Distillery, Park City, UT" line on the label.

See below for the comparison.   I am going back to TTB with this and will let you know how it turns out.

[jeffw]

Well, looking at that quickly, Bourbon Whiskey in a different size and font than the "Capital Blend" makes it look like you are calling it Bourbon Whiskey, which it isn't...If Capital Blend Bourbon Whiskey was all the same font, maybe require even same line, then you might be fine.  The High West example COLA has a fanciful name American Prairie Bourbon (all same font and typeface).  Seriously, you can get someone on the TTB on the phone if you are persistent.  I don't think any consultant can get your label approved because of the way you made it.

 

Not to mention your "California" doesn't indicate what it is a reference to, which I imagine the TTB doesn't like.  Once again, the High West lists the Bottled by.  If you change California to bottled by Patio 29 California, should be fine on that.  Regardless, it really looks like you are saying it is Bourbon Whiskey as a classification, which it isn't.

[Patio29Dadio]

11 minutes ago, jeffw said:

Well, looking at that quickly, Bourbon Whiskey in a different size and font than the "Capital Blend" makes it look like you are calling it Bourbon Whiskey, which it isn't...If Capital Blend Bourbon Whiskey was all the same font, maybe require even same line, then you might be fine.  The High West example COLA has a fanciful name American Prairie Bourbon (all same font and typeface).  Seriously, you can get someone on the TTB on the phone if you are persistent.  I don't think any consultant can get your label approved because of the way you made it.

 

Not to mention your "California" doesn't indicate what it is a reference to, which I imagine the TTB doesn't like.  Once again, the High West lists the Bottled by.  If you change California to bottled by Patio 29 California, should be fine on that.  Regardless, it really looks like you are saying it is Bourbon Whiskey as a classification, which it isn't.

Just got off the phone with a nice and knowledgeable TTB person.  We looked at the High West COLA approvals and was told they were wrong.   Oops... I hope I did not make any trouble for them!  But you are correct in that it was the font size of "Bourbon Whiskey" that caused the correction request because they thought it conflicted with the actual type.   The change is to remove the "A BLEND OF STRAIGHT BOURBON WHISKEYS" line and to change BOURBON WHISKEY to "BLENDED STRAIGHT BOURBON WHISKEY".  Then my fanciful name will be "Capital Blend".   Said they should not have a problem with the "California"... told me to include a comment that it is expected that some or all of the source will be distilled in California. 

[Patio29Dadio]

Latest... they are fighting the “blend” part because the two allowed/recognized blend types are:

1. Straight whiskeys from the same state.  (No formula required)

2. A product that is a blend of at least 51% straight whiskey/s plus GNS (even though the description does not require GNS, that is the intent of this type...  a product with other stuff blended to the straight whiskey.)  A formula is required for this.

My approach was to apply for #2 but just skip adding any of the other stuff... something that seems to be allowed in the specification of the type Blended Straight Bourbon Whiskey.  But when my formula is only multiple straight bourbon whiskeys they put it as a type Type Whiskey/Bourbon... basically negating the need for a formula.  

They want me to remove the world “Blend” and “blended” from all the parts of the label, because, they say, that they don’t want the consumer to be confused.  

And I tell them if I label it Straight Bourbon Whiskey while it is a blend of more than one Stright Bourbon Whiskeys from different states, that seems to:

1. Be misleading to the consumer as the consumer will naturally assume it is one bourbon.

2. Eliminate a key description of the uniqueness of the product... being a blend of different straight bourbons and not a single expression.  

I have a name of a specialist to talk to and will try to reach him next week to talk this through.  From my perspective, they should allow it to be a Straight Bourbon Whiskey but accept the fanciful name “Capital Blend Bourbon Whiskey” as long as I remove “Blended Straight Bourbon Whiskey” from the label.  Otherwise I have to call it Capital Straight Bourbon Whiskey... and that misses the point.  

Learning that there are number of COLA gray areas and undocumented standards known by the TTB agent and not otherwise documented in any definitive way.  And I have A LOT of experience dealing with federal regulations.  

[Roger]

I'm surprised MGP doesnt provide free "fake craft" label advise ?

 

[Julius]

17 hours ago, Patio29Dadio said:

Latest... they are fighting the “blend” part because the two allowed/recognized blend types are:

1. Straight whiskeys from the same state.  (No formula required)

2. A product that is a blend of at least 51% straight whiskey/s plus GNS (even though the description does not require GNS, that is the intent of this type...  a product with other stuff blended to the straight whiskey.)  A formula is required for this.

My approach was to apply for #2 but just skip adding any of the other stuff... something that seems to be allowed in the specification of the type Blended Straight Bourbon Whiskey.  But when my formula is only multiple straight bourbon whiskeys they put it as a type Type Whiskey/Bourbon... basically negating the need for a formula.  

They want me to remove the world “Blend” and “blended” from all the parts of the label, because, they say, that they don’t want the consumer to be confused.  

And I tell them if I label it Straight Bourbon Whiskey while it is a blend of more than one Stright Bourbon Whiskeys from different states, that seems to:

1. Be misleading to the consumer as the consumer will naturally assume it is one bourbon.

2. Eliminate a key description of the uniqueness of the product... being a blend of different straight bourbons and not a single expression.  

I have a name of a specialist to talk to and will try to reach him next week to talk this through.  From my perspective, they should allow it to be a Straight Bourbon Whiskey but accept the fanciful name “Capital Blend Bourbon Whiskey” as long as I remove “Blended Straight Bourbon Whiskey” from the label.  Otherwise I have to call it Capital Straight Bourbon Whiskey... and that misses the point.  

Learning that there are number of COLA gray areas and undocumented standards known by the TTB agent and not otherwise documented in any definitive way.  And I have A LOT of experience dealing with federal regulations.  

#2 In addition to GNS being used in blended whiskey, it is also common for spirit or light whiskey (whiskey distilled over 160proof) to be used in a blend.