Hop Flavored Whiskey or something else?

[Darren Bobby]

A few years ago we distilled a unfinished production beer. The wash we pulled from the fermenter included sucrose that was added at the end of the boil. The spirit has been hanging out in barrels for the last 2+ years and now we are thinking of doing a special release. 

Does the addition of the sucrose change the TTB designation we need to apply for on this spirit?

Anyone have any experience with this? 

Thanks, 

[glisade]

So you distilled a wash of fermented malt, sucrose with hops? We have something very similar where the formula contained grain(s), sugar and hops. We got a DSS with a SOC of " Spirits distilled from Grain and Hops and finished in charred oak barrels. "

[Darren Bobby]

Yes, that's what we distilled. Thanks. 

[adamOVD]

I am fairly sure you can only call it a "hopped flavored whiskey" if the hops are added after the distillation. If the hops, and sucrose are present during fermentation and before distillation you have to label it "spirit distilled from ..." like glisade said, as a specialty spirit. This is true even if your additions are unfermentable for some reason.

[dhdunbar]

Under the existing regulations, adamOVD gets it right. The standard for flavored whiskey (§5.22(i)) is whiskey to which flavor is added.  Adding anything other than grain as fermenting material means that the product should not be designated as whiskey when you make the production gauge(▌19.304) and place it into oak, since under §19.305, "Upon completion of the production gauge, the proprietor must identify containers of spirits as provided in subpart S of this part."  Subpart S includes §19.484, which provides, "  a proprietor must mark packages of spirits filled in production or storage with ...the kind of spirits."  Then §19.487 provides "The designations of kind of spirits required for packages filled on bonded premises must be consistent with the classes and types of spirits set forth in part 5 of this chapter," subject to certain exceptions that are not relevant to the  issue here."  That is, you never have a spirit that you may call "whiskey." 

So, if you never have whiskey under the standards, then you don't add the flavors to whiskey, so you don't have flavored whiskey.  Further, since you never had whiskey, you should not be able to include whiskey in your statement of composition.  Logically, an ingredient you don't have can't be an ingredient in the product.  Regulation formalizes that in §5.35, which provides "A product shall not bear a designation which indicates it contains a class or type of distilled spirits unless the distilled spirits therein conform to such class and type."

That is the rigorous pathway to azdamOVD's conclusion.  Here is how TTB described the situation in its recently rule making, to "modernize" the labeling laws. 

The TTB regulations currently list flavored brandy, flavored gin, flavored rum, flavored vodka, and flavored whisky as the class designations under Class 9. Other types or classes of distilled spirits that are flavored currently are treated as distilled spirits specialty products and the labels for such products must contain a statement of composition. While TTB allows for any spirit to appear as part of a truthful statement of composition, TTB does not believe that consumers perceive a distinction between, for example ‘‘Orange Flavored Tequila’’—which is how a flavored spirit would be designated under the proposed rule— and ‘‘Tequila with Orange Flavor’’— which is how the statement of composition would appear for a distilled spirits specialty product. TTB therefore believes it should allow any type of base spirit to be flavored in accordance with the flavored spirits standard instead of just brandy, gin, rum, vodka, and whisky, as permitted by the current regulations. Accordingly, proposed § 5.151 provides a class of flavored spirits that would allow any base spirit to be flavored when made in accordance with the standards of identity set forth in the regulation. [the emphjaisis is mine].

The changes have not been adopted yet, but when they are, the rules will change in some important ways of which you should be aware - for example, you will be able to declare an age on any product but neutral spirits (which includes vodka) that are not grain spirits.  They do not provide for any change that would allow you to designate your product as flavored whiskey, because the addition of sugar to the grains in the "whiskey" product nixes any possibility of ever having whiskey and I think that is proper.  Consumers, to the extent they care about such things (some do care and some others care when there is a potential for a class action law suit), think whiskey is made from grain.  Add sugar and it is not whiskey. I think most whiskey producers would support that position, since they would not want to compete with whiskeys that were 50% sugar derived.. 

However,  I've got a different feeling about flavors. It is irrelevant, but I have it anyway.  Two products can have identical profiles, but one is flavored whiskey and one is a specialty item.  Does that make sense?  Well, in the case of gin, you can produce it by original distillation, or you can manufacture it by redistillation of an existing spirit in the processing account.  Either satisfies the standard.  That follows from the circumstances at the time that the standards were written.  People made gin both ways then.  Nobody outside of the hollows made a product by mixing grain and sugar and adding hops to the distilling material. 

The rationale behind TTB's proposed rule,. which is likely to be potted, that will allow you to designate products that meet the standards for both cordials and flavored products with either designation, is interesting.  It proposed change, it says, because it "does not believe that consumers perceive a distinction between, for example ‘‘Orange Flavored Tequila’’—which is how a flavored spirit would be designated under the proposed rule— and ‘‘Tequila with Orange Flavor’’— which is how the statement of composition would appear for a distilled spirits specialty product."  That rationale, that the consumer does not perceive a difference, provides an opening for other changes not yet made.

Many of you, in the manner of brewers, seek to create new products.  Wineries do to.  New grape types are added regularly to the list of those which may be used as varietal designations.  But when you have set standards for items like, vodka whiskey, rum and brandy, most "innovative" products are going to fall into the specialty category, that is, they will be products that don't conform to a standard in §5.22.  So, if you want to cling to traditional standards of identity as the rule for label designations, and you also want also to have innovative products, then you need to turn your attention to the rules that apply to specialty items, specifically to the statements of composition.  I'd not forget the "consumers do not perceive a difference rationale if you do that.

 

[Darren Bobby]

Thanks for the help guys. I assumed DSS from the start but there was push for the word "whiskey" from above so I asked.

[Still_Holler]

We appled for formula and got "Spirits distilled from grain and distilled with hops".  Tried to shorten it to "Spirits distilled from grain and hops" on our label but got sent back and put the full deal on there.

[dhdunbar]

Still-Holler - TTB's requirement  sounds like an answer that is correct by the book , but in the instant question they'd have to add sugar - spirits distilled from gain and sugar and distilled wit h hops."  If you add a flavor, you get an even more convoluted statement,  which makes for an even longer , more awkward, and uglier statement of composition.  It almost makes you want to suggest that, for specialty items,  TTB should adopt ingredient labeling in the format of the FDA.  Maybe someone should suggest that?  But if someone does, they they best think through the possible unintended consequences.  Cowdery used to post on the forum.  One piece of good advice he gave was "Writing regulations isn't for amateurs."  I count myself among those we are amateurs.  

[SteelB]

We have a product that we call hoppyhour.its a vodka  but we got hung with DSS designation.we are a distillery and brewery in the same building.  It's nice as the distiller I get to play with grains you wouldnt normally find hanging out at the distillery.

Anyway we did a double IPA, distilled it out to 190 cut it back and added it to our house vodka.....final product is a 70 proof flavored vodka, but they said no. It's a DSS.

[Darren Bobby]

SteelB - I'm in the same boat here. We get to distill some interesting stuff.Recently used a distilled stout as a base spirit for a coffee liqueur. 

[adamOVD]

12 hours ago, Darren Bobby said:

Recently used a distilled stout as a base spirit for a coffee liqueur. 

Sounds fantastic. At least we can still play around with different grains, malts, and yeast while still keeping a whiskey designation. As long as it's at least 60% of a common grain type.

Just leave the hops out. Or play around with dry hopping the spirit. Then you can use the "hopped whiskey" designation.

[bluestar]

11 hours ago, adamOVD said:

Sounds fantastic. At least we can still play around with different grains, malts, and yeast while still keeping a whiskey designation. As long as it's at least 60% of a common grain type.

Just leave the hops out. Or play around with dry hopping the spirit. Then you can use the "hopped whiskey" designation.

Not sure what you mean by a 60% minimum common grain type. Where does that come into a whiskey designation? You can make whiskey from 100% uncommon grain type, just so long as it is 100% grain.

[adamOVD]

4 hours ago, bluestar said:

Not sure what you mean by a 60% minimum common grain type

Just meant if you want to keep a certain designation, like bourbon, you still have 40% of the grain bill to play around with.

[bluestar]

On 1/25/2020 at 2:59 PM, adamOVD said:

Just meant if you want to keep a certain designation, like bourbon, you still have 40% of the grain bill to play around with.

In THAT sense, in fact, you have 49% of the grain bill to play around with. EG, bourbon is 51% or more corn, etc...

[dhdunbar]

Bluerstar is correct about the 51-49 requirement.  I'll add that  you must watch how you "play"  with bourbon.  It' isn't rye or other grain designated whiskey.  Mess with bourbon much and you end  up with a specialty.  See TTB Ruling 2016-3, "General Use Formulas for Certain Distilled Spirits Produced Using Harmless Coloring, Flavoring, or Blending Materials," which first state a general rule for straight whiskey (overt two years old, etc): 

• Section 5.23 also provides that any whisky designated as “straight” may not contain any added coloring, flavoring, or blending materials. This includes “straight bourbon whisky,” “straight corn whisky,” “straight malt whisky,” “straight rye malt whisky,” “straight rye whisky,” “straight wheat whisky,” and “straight whisky.” 

It then talks about bourbon, straight or not:

• Furthermore, Chapter 7 of the Distilled Spirits Beverage Alcohol Manual (BAM) (TTB P 5110.7 (04/2007)) provides that bourbon whisky may not contain any amount of added coloring, flavoring or blending materials [my emphasis]. This reflects the determination by our predecessor agency, the Bureau of Alcohol, Tobacco and Firearms (ATF), that added coloring, flavoring, or blending materials are not customarily employed in the production of bourbon whisky in accordance with established trade usage.

It goes on to hold:

• Held further, TTB approves a general-use formula under §§ 5.26 and 19.348 for the following types of whisky, if they contain no harmless coloring, flavoring or blending materials other than sugar, caramel, or wine, singly or in combination, in a quantity that does not exceed a total of 2½ percent by volume of the finished whisky: • Whisky made in accordance with § 5.22(b) that is designated as “whisky” without any type designation; • Rye whisky, wheat whisky, malt whisky, or rye malt whisky made in accordance with § 5.22(b)(1)(i); • Corn whisky made in accordance with § 5.22(b)(1)(ii); • Whisky distilled from bourbon mash, rye mash, wheat mash, malt mash, or rye malt mash in accordance with § 5.22(b)(2); and • Light whisky made in accordance with § 5.22(b)(3).

• Held further, no coloring, flavoring, or blending materials may be used in the production of spirits designated as “bourbon whisky” in accordance with § 5.22(b)(1)(i) or “straight” whisky in accordance with § 5.22(b)(1)(iii).

TTB's now pending proposed rules include a provision on bourbon taken from TTB Ruling 2016-3.  In TTB's words, as found in the Notice of Proposed Rule Making,  "Among other things, the proposed rule will codify in the regulations for the first time TTB’s current policy, as set forth in the Distilled Spirits Beverage Alcohol Manual (TTB P 5110.7), that coloring, flavoring, or blending materials may not be added to products designated as ‘‘bourbon whisky.’’

I think that would rule out hopped bourbon whiskey.  Because there it meets no other standard,  it would become a specialty item and would need to be labeled with a fanciful name and truthful and adequate statement of composition. 

There are clever ways around this.  For example, go into the public COLA registry and compare the Angels Envy labels for "bourbon" and "rye" whiskey.  The "bourbon" isn't classified as bourbon, but who would know that from the label?    

It's a silly game, from my standpoint as a consumer.  Do I care?  

[adamOVD]

Yeah 49%, sorry,  numbers are hard, and as always, comments from @dhdunbar are way more insightful and detailed than anything I'd ever say.