What makes bourbon bourbon? Bourbon is a uniquely American whiskey that is federally defined and regulated. Bourbon is a type of whiskey distilled from primarily corn with strict requirements on how and where it it is distilled, aged, and bottled. Louisville-based attorney, Brian Haara explains the federal regulations that define bourbon and what must and cannot be added to whiskey bearing the bourbon label.
Brian Haara is an attorney based in Louisville, Kentucky and is the author of the book Bourbon Justice: How Whiskey Law Shaped America.
Bourbon – Made in the United States from at Least 51% Corn
Like all whiskeys, bourbon is a distilled spirit made from grains, but bourbon has traditionally been and is legally required to be majority corn. At least 51% of the grain must be corn. Bourbon also has a geographic requirement. While it does not have to be made in any particular state, it must be produced in the United States.
Proof of Bourbon
Proof is a measurement of the alcohol content calculated by doubling the alcohol percentage (quick example, 40% alcohol whiskey is 80 proof). The proof levels are regulated throughout the bourbon making process. To make bourbon, the grains may not be distilled above 160 proof. Additionally, when it is aged, the spirit can be no higher than 125 proof. Both of these restrictions are for similar reasons, to allow for more complex flavors in the spirit that can be stripped away when alcohol concentrations get too high early in the process. A final proof requirement – when bourbon is bottled it must be a minimum of 80 proof or at least 40% alcohol by volume.
Charred New Oak Containers
To make bourbon, there are specific regulations about where the whiskey is aged. The CFR mandates that bourbon be aged in “charred new oak containers.” So, the barrel form is more of a practice than a legal requirement. The law simply requires that the wood holding bourbon be charred and it must be "new oak." The new oak requirement is different to other forms of whiskey such as Scotch whisky, which often uses barrels that were previously used to make bourbon. Bourbon requires first use of the wood so as to get more interaction with the char, allowing for a sweeter flavor profile.
Class 2; whisky. “Whisky” 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 also includes mixtures of such distillates for which no specific standards of identity are prescribed.
27 CFR § 5.22(b)(1)(i) - Standards of identity [in relevent part as pertaining to Bourbon]
“Bourbon whisky...” is whisky produced at not exceeding 160° proof from a fermented mash of not less than 51 percent corn... and stored at not more than 125° proof in charred new oak containers; and also includes mixtures of such whiskies of the same type.
27 CFR § 5.22(I) - Class 12; Products without geographical designations but distinctive of a particular place [in relevent part as pertaining to Bourbon]
(1) The whiskies of the types specified in paragraphs (b) (1), (4), (5), and (6) of this section are distinctive products of the United States and if produced in a foreign country shall be designated by the applicable designation prescribed in such paragraphs, together with the words “American type” or the words “produced (distilled, blended) in __”, the blank to be filled in with the name of the foreign country: Provided, That the word “bourbon” shall not be used to describe any whisky or whisky-based distilled spirits not produced in the United States.
For our 30-min conversation exploring American bourbon law from consumer protection to intellectual property, watch Law of Bourbon.
An Interview with attorney Brian Haara
Joel Cohen (JC): Hello and welcome to TalksOnLaw. I'm Joel Cohen. Today we're joined remotely by Brian Haara, attorney and author. Brian, welcome to TalksOnLaw.
Brian Haara (BH): Thanks for having me. I'm really excited.
JC: As two lawyers talking about bourbon, why don't we start with a legal definition. Is this actually a defined term?
BH: It's very much defined. It's something that has been defined since the 1800s, a little more loosely then. But then by the 1960s, it made its way into the code of federal regulations (CFR), and it's very heavily regulated.
Bourbon as Defined Under 27 C.F.R. § 5.22(b)(1)
JC: First, why don't we start with what has to go into it and then we can move on to restrictions.
BH: Sure, all whiskey is a distillate made from grains and bourbon is a type of whiskey. The different types of grains that can go into whiskey are barley, rye, corn, and several other grains, but the primary or the beginning definition for bourbon is that it has to be made from 51% corn. It's a majority-corn whiskey. Second, it's got to be distilled to be no higher than 160 proof, and the reason there is if you start going higher than 160 proof, you're stripping away the grain flavor, and part of what makes bourbon so special is that you can taste some of the grains – the corn and the rye in your bourbon. When it's put into the barrel, it can be no higher than 125 proof, and that's for a similar reason, to have more interaction with the barrel at not so high of a proof. Now, I say the word barrel, there the CFR actually states that the term that it uses is “charred new oak containers” so it doesn't necessarily have to be a barrel. Everyone does use a barrel, but you could make a bucket out of new charred oak, put your distillate into it, and you could have bourbon. And then finally, when it's bottled, it has to be at least 80 proof. There's no upper limit. but it's got to be at least 80 proof in the bottle. Didn't you say the upper limit is 160 proof? That's when you distill it, 160 proof when distilling. The proof in the barrel can go up or down depending on where it is in the warehouse. The higher you are in a in a bourbon warehouse, your proof will actually increase, so you could start in the barrel at 120 proof, and then seven years later, have 137 proof. And it can go into the bottle at 137 proof and still be bourbon. It just can't go lower than 80 proof.
JC: And for the aficionados out there, you mentioned the container must be charred new oak new oak meaning it's fresh. It hasn't been used for any barrels in the past?
BH: That's right, no previous use. Scotch uses bourbon barrels or cherry barrels. Tequila often uses bourbon barrels. After they've been emptied, we basically get barrels ready for the rest of the whiskey world, but ours are first used so that way they get more interaction with the char which releases the sugars from the wood and you get a sweeter whiskey than you do with scotch for example.
What Can't Be Added to Bourbon
JC: So that's what must go into bourbon. What about restrictions, what can't you include?
BH: Basically, you can't include anything else. The only thing you can put into bourbon and it still be bourbon is pure water. With other whiskeys like Scotch, for example, you can add coloring and flavoring additives. That's prohibited in bourbon. The bourbon rule is you get your flavors from the yeast that you use in distillation, from the types of grain you use, and from the barrel. And that's it.
JC: So there's no honey bourbon that can go under the name bourbon?
BH: That's exactly right. Now there is a lot of flavored whiskey that uses bourbon as a starting point. So there's honey flavored whiskey and a lot of times that'll start with bourbon. There's, of course, cinnamon flavored whiskey, and there's bourbon that's put into other barrels after it's ready, and that's called finishing. And you can add some different flavors there, but it's technically not bourbon anymore.