Can the U.S. Recognize Rum Regulations?

As Caribbean rum gains in popularity and rum enthusiasts push
back on the “Rum has no rules” trope, a common refrain is “The United States
doesn’t recognize rum’s rules.” It’s been said by well-meaning advocates online
and at public events such as Tales of the Cocktail. In fact, I’ve said
something along those lines myself, previously.

If you’re a proponent of artisanal rum, striving to improve
its reputation among anybody who will listen, it’s easy to shake your virtual
fist at the faceless bureaucrats in the U.S. government who don’t care about
the rum regulations of Jamaica and other rum-making countries.

That frustration is misplaced.

The U.S. government has a mechanism in place to respect the
spirit regulations of other countries like French Cognac, Peruvian pisco, and Scotch
whisky. However, this recognition doesn’t just magically happen. Spoiler alert:
To date, only one cane-spirit producing country is known to have undertaken the
process for their national spirit to be recognized by the U.S. More on this
later.

Not content to accept the collective wisdom that the U.S.
simply doesn’t care about rum regulations, I set out to uncover the real
reason. This meant asking the right questions of within the bureaucracy of the
U.S. government, and digging through dry regulations. It wasn’t easy, but I got
an answer.

The reason likely isn’t what you think. And it seems I wasn’t asking the right questions in the beginning.

When talking about “the rules” for a spirit like Cognac or Scotch
whiskey, what’s usually meant is the spirit’s geographical indication. A
geographical indication encapsulates all manner of requirements about how a
given spirit is made and labeled. A well-known example of a rum GI is the Martinique
AOC.

The “geographical” portion of the term means that the rules apply
to spirits made in a particular region. Sometime the region is a country, but it
might only apply to a sub-region within a country, e.g. the Cognac region of
France.

One benefit a GI provides is helping protect an authentic spirit from unfair competition from an imposter product attempting to leveraging the authentic spirit’s good reputation. Thus, a brandy made in Mexico cannot be labeled and sold in France as Cognac. As well, a brandy made in France but not following the Cognac GI could not be labeled and sold as Cognac.

GIs are a complicated topic, and there’s not space to dive
deeply into them here. Should you wish to know more about them, see this story.

Where GIs and associated legalities gets fuzzier is when a
bottle goes outside its country of origin. A spirit GI established by country
doesn’t automatically have recognition or enforcement in another country. Thus,
a not-really-Cognac could be sold in Peru as Cognac if Peru did not recognize
the Cognac GI. The French GI for Cognac has no intrinsic meaning or enforcement
in Panama, Peru, or Paraguay without recognition from those countries.

In practice, it’s beneficial for countries or trading blocs
such as the European Union to recognize the GIs of other countries. There are
often reciprocal
agreements
between countries or trading blocs to recognize each other GIs.
Thus, the U.S recognizes the Scotch whisky and Cognac GIs, while those
countries recognize American’s regulations regarding Bourbon.

These agreements don’t happen in a vacuum — they’re
negotiated. And when it comes to smaller countries with little economic power,
it can be a challenge to get other countries or trading blocks to recognize the
small country’s GI.

This is the position that rum unfortunately finds itself in.
The countries of Jamaica, Guyana, Cuba, and others just don’t have the economic
might of the U.S., the U.K., France, Germany and so on. This is one reason why
these Caribbean nations work together via organizations like CARICOM and WIRSPA.

So, in short, the question this article proposes to answer
is: How do these countries get their GIs recognized?

When it comes to the U.S., that’s the wrong question. The
U.S. doesn’t have GIs for its own spirits, and it doesn’t intrinsically
recognize foreign GIs. However, the U.S. recognize something else that’s equally
important, and which can provide a pathway for recognition.

In the U.S. regulations of distilled spirits is generally within
the domain of the Tax and Trade Bureau, colloquially known as the TTB. The TTB
is not known for being open, transparent, or communicative. Many producers who must
deal with the TTB for bottle label approvals call the TTB inscrutable, or far worse
things. I’ve written many times about how the TTB fails to even enforce its own
laws. Just one example is allowing a
spirit made from beet sugar to be labeled as rum, despite a regulation saying
that rum must originate from cane sugar.

Nonetheless, if I was going to get an official answer, it was
going to be from the TTB.

Donning my virtual reporters’ hat, I submitted a lengthy, two-part question via the TTB press inquiry web form:

As you know, the TTB (or at least I believe it’s the TTB) acknowledges the geographical indications of some products from certain countries. For example, Scotch Whisky from Scotland, Cognac and Armagnac from France, and Cachaça from Brazil. (The US recently recognized Cachaça as a distinct product of Brazil, in exchange for them recognizing Bourbon as an American whiskey.)

Presumably then, a whisky from Peru labeled as “Single Malt Scotch Whisky” would be rejected by the label approval process.

However, it does not seem like the TTB recognizes all standards of identity, in terms of COLA approvals and such. It seems there are countries that have regulations about their labeling and origin requirements that aren’t recognized by the TTB.

So, to start out, two questions for you:

1) Is there a definitive list of the Geographical Indications (GIs) or similar spirit regulations (like AOCs) that the U.S. TTB officially recognizes?

2) How would a country go about getting its Geographical Indication recognized and enforced by the TTB? For example, Jamaica has had a Geographical Indication for its rum for several year now. However, I can’t find any U.S. recognition of this GI. What would they have to do to get their GI accepted by the TTB?

It’s become a theme for spirit brands to say that their regulations aren’t recognized by the TTB. That may or may not be true. I’m curious as to how they would even go about that.

Having previously submitted questions to the TTB and not received
answers, I held out little hope. To my surprise, I received a reply from Thom
Hogue, the Director of Congressional and Public Affairs. His answer caught me
off guard:

The basic answer is that we enforce the standards of identity with regard to spirits rather than GIs. 

TTB’s labeling regulations are promulgated under the FAA Act, which is geared towards ensuring consumers have adequate/nonmisleading information about a product.  It’s not an intellectual property statute.  (GIs are intellectual property.)

[The] TTB is not an intellectual property agency, and does not enforce intellectual property rights.  The FAA Act regulations have standards of identity for certain distilled spirits.  You can find them at 27 CFR 5.22.  (You can follow the links under Part 5 on this page to see the relevant regulations).

If someone wants there to be a new standard of identity for a distilled spirit, then they would need to petition us to amend the regulations at 27 CFR 55.22 and we would need to go through the rulemaking process (meaning public notice and comment).

Note: FAA is Federal Alcohol Administration.

So, what does this all mean?

The first key point is the introduction of the term standard
of identity
, and a process to obtain one. It’s an important term that’s
specific to the U.S., and central to the discussion that follows.

The second key point is within the first three paragraphs,
which lay out something important: When it comes to the TTB and spirit
regulations, what matters are “Standards of Identity”, not geographical
indications.

It seems that to continue our quest to understand how country-specific
rum regulations might be recognized by the U.S., we must dwell on what a
standard of identity is. Luckily, the reply cites a regulatory identifier: 27
CFR 5.22 that provide some clues.  So,
into the TTB regulations we go!

The U.S. Standards of Identity are essentially legal
descriptions for various spirits as they apply to the U.S. market. You might
think of a U.S. standard of identity for a distilled spirit as roughly equivalent
to a GI, in terms of defining how a spirit is labeled. However, U.S. standards
of identity are far less detailed than the GIs for spirits such as Scotch
Whisky. Nonetheless, they represent the U.S. perspective on what is, or is not vodka,
brandy, bourbon, rum, and so forth.

(From here on out, I will abbreviate standard of identity as SOI for reading clarity.)

The complete list of U.S. recognized SOIs is embedded within
the Code of Federal Regulations, Title 27 – Alcohol, Tobacco Products and Firearms,
Part 5 – Labelling and Advertising of Distilled Spirits.

It’s quite a lengthy
document
, covering all manner of federal regulations about distilled
spirits. What we’re after is found within section 22 of Part 5 (so, 5.22),
which begins:

The standards of identity.

Standards of identity for the several classes and types of distilled spirits set forth in this section shall be as follows (see also § 5.35, class and type):

(a) Class 1; neutral spirits or alcohol. “Neutral spirits” or “alcohol” are distilled spirits produced from any material at or above 190° proof, and, if bottled, bottled at not less than 80° proof.

(1) “Vodka” is neutral spirits so distilled, or so treated after distillation with charcoal or other materials, as to be without distinctive character, aroma, taste, or color.

(2) “Grain spirits” are neutral spirits distilled from a fermented mash of grain and stored in oak containers.

The list of SOIs in section 5.22 goes on for quite a while. In
the interest of brevity, here I’ll highlight just a few key SOIs that are relevant
to our quest.

Bourbon and rye, the canonical American spirits, along with
the lesser known types of American whiskey, have this SOI:

“Bourbon whisky”, “rye whisky”, “wheat whisky”, “malt whisky”, or “rye malt whisky” is whisky produced at not exceeding 160° proof from a fermented mash of not less than 51 percent corn, rye, wheat, malted barley, or malted rye grain, respectively, and stored at not more than 125° proof in charred new oak containers; and also includes mixtures of such whiskies of the same type.

Scotch Whisky’s SOI reads:

“Scotch whisky” is whisky which is a distinctive product of Scotland, manufactured in Scotland in compliance with the laws of the United Kingdom regulating the manufacture of Scotch whisky for consumption in the United Kingdom: Provided, That if such product is a mixture of whiskies, such mixture is “blended Scotch whisky” (Scotch whisky—a blend).

There are nearly identical standards of identity for Irish
Whisky and Canadian Whisky, albeit from Ireland and Canada, naturally.

Cognac’s SOI reads:

“Cognac”, or “Cognac (grape) brandy”, is 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.

Pisco has this SOI:

“Pisco” is grape brandy manufactured in Peru or Chile in accordance with the laws and regulations of the country of manufacture governing the manufacture of Pisco for consumption in the country of manufacture.

“Pisco Perú” (or “Pisco Peru”) is Pisco manufactured in Peru in accordance with the laws and regulations of Peru governing the manufacture of Pisco for consumption in that country.

“Pisco Chileno” (or “Chilean Pisco”) is Pisco manufactured in Chile in accordance with the laws and regulations of Chile governing the manufacture of Pisco for consumption in that country.

Tequila’s SOI reads:

“Tequila” is an alcoholic distillate from a fermented mash derived principally from the Agave Tequilana Weber (“blue” variety), with or without additional fermentable substances, distilled in such a manner that the distillate possesses the taste, aroma, and characteristics generally attributed to Tequila and bottled at not less than 80° proof, and also includes mixtures solely of such distillates. Tequila is a distinctive product of Mexico, manufactured in Mexico in compliance with the laws of Mexico regulating the manufacture of Tequila for consumption in that country.

A sharp eye will notice a common pattern in the SOI wording for
non-U.S. spirits:

  • A declaration of what the spirit is made from
    and where it’s made.
  • That it complies with the laws and regulations
    of the country where it is made.

That is, Cognac is made in France from grapes, and conforms
to the French regulation for Cognac. Tequila is made in Mexico from agave, and
in compliance with the Mexican regulations for tequila.

It is the second point: Made in compliance with the laws
of the country where it was made
, that’s easy to gloss over, but is
extremely important for what follows.

Why? The “laws and regulations” part of the SOI is where U.S.
regulations connect to the GIs of other countries. The GIs of Scotland, France,
Mexico, and other countries aren’t directly recognized as GIs by the TTB.
Rather, these GIs are wrapped up and form part of a broader definition, i.e. the
U.S. standard of identity.

If you think about it, the wording of the TTB’s SOIs are
quite smart. Rather than reciting all the GI contents of each country, they
simply point to those regulations, so effectively mean “whatever that country’s
GI says.”

Thus, if Scotland changes their GI for Scotch Whisky, the
U.S. SOI for Scotch whisky doesn’t change. Each country can change their GIs as
they see fit, and the U.S. regulations follow along.

Just to be sure that my understanding was correct, I
followed up with Hogue, asking for clarification. He replied:

Distilled spirits may be
recognized in the country of production and other countries as GIs, but TTB
does not regulate GI’s and they do not appear in our regulations.  If the standard of identity for a particular
distilled spirit requires it to be produced in a particular country, then, yes,
the wording “in compliance with the laws of…” is relevant.

If the producing country’s
laws and regulations governing the manufacture of that particular distilled
spirit change, then, no, the wording in TTB’s FAA Act regulations doesn’t have
to change.  Rather, 27 CFR 5.22
automatically reflects the current production requirements promulgated by a
country’s current regulations governing that spirit category.

Having established that non-U.S. spirits have their GIs
encapsulated as U.S. standards of identity, you might expect to see SOIs for
Jamaican rum, Martinique rhum, Dominican Republic rum, Guyanese rum, and so
forth — all have GIs.

However, disappointment awaits if you search for them in the
TTB regulations. All that section 5.22 has about rum is this:

“Rum” is an alcoholic distillate from the fermented juice of sugar cane, sugar cane syrup, sugar cane molasses, or other sugar cane by-products, produced at less than 190° proof in such manner that the distillate possesses the taste, aroma, and characteristics generally attributed to rum, and bottled at not less than 80° proof; and also includes mixtures solely of such distillates.

Hmm… this isn’t a good look for rum. While the U.S. has at
least eight distinct SOIs for various whiskies, all rum is lumped into a single
SOI. There’s no chance for Demerara rum from Guyana to be differentiated from Jamaican
rum or Martinique AOC rhum agricole.

Simply put, the way for the rum making countries to have
their GIs recognized by the U.S. is to get a standard of identity added to section
5.22 list of SOIs.

How does this happen? This brings us back to the second part
of Hogue’s initial response to me: A country wanting a SOI would need to
petition the TTB to add a new SOI. If the petition is accepted, it would trigger
a public notice, and a request for comment on the proposed new SOI.

Now, you might think that all rum producing countries with
GIs would also have applied to the U.S. to obtain a corresponding SOI. Sadly,
this does not appear to be the case.

In my conversations with high-level people connected with
GI-owning countries, no one could confirm their country had petitioned the TTB
for a SOI. While it’s possible they weren’t aware of such request, the official
records of the TTB tell a similar story.

As noted earlier, an accepted request for amending the
standards of identity triggers a public notice and a period of commentary. Had
any country successfully petitioned for considering a new SOI, it would be
listed in the TTB Notices
of Proposed Rulemaking.

Having scanned all the proposed rule changes going back to
1998, I can tell you that proposals for Jamaican, Martinique, and Guyanese rum
SOIs do not appear. In fact, there is no proposal for any cane spirit standards
of identity, save one: Brazilian cachaça.

In 2012, the TTB recognized Brazil’s petition for a SOI for cachaça.
The announcement reads, in part:

In Notice No. 127, a proposed rule published in the Federal Register on Monday, April 30, 2012, TTB proposes to amend the regulations setting forth the standards of identity for distilled spirits to include “Cachaça” as a type of rum and as a distinctive product of Brazil. TTB is making this proposal in response to requests from the Government of Brazil and subsequent discussions with the Office of the United States Trade Representative. Under a recently signed U.S.-Brazil agreement, if the United States adopts a final rule recognizing Cachaça as a type of rum that is a distinctive product of Brazil, then, in turn, Brazil will recognize Bourbon Whiskey and Tennessee Whiskey as distinctive products of the United States.

This announcement is interesting in that it explicitly ties the U.S.
recognition of cachaça to Brazil’s recognition of Bourbon and Tennessee
Whiskey as distinct U.S. products. Also, it notes that cachaça can be referred
to as either rum or as cachaça, a distinctive product of Brazil.

Having gone through the public announcement and public
comment phase, cachaça was eventually granted its own SOI in 2013. However, cachaça’s road to a SOI was a lengthy, twelve-year
process, as the Federal Register describes:

2001 Brazilian Petition

By letter dated April 30, 2001, the Embassy of the Government of Brazil submitted a petition to the Bureau of Alcohol, Tobacco and Firearms (ATF) in which it requested that ATF amend its regulations to recognize the Brazilian distilled spirits product known as ‘‘Cachaça’’ as a distinctive product of Brazil.

The Brazilian Embassy stated that Cachaça is known worldwide as a Brazilian product and that Brazil has been a supplier of Cachaça to the United States for many decades. After preliminary discussions with the Brazilian Embassy, no further action was taken with regard to the request.

2006 Brazilian Petition

In a petition dated March 6, 2006, the Brazilian Embassy requested that TTB amend its regulations to provide recognition of Cachaça as a distinctive product of Brazil.

Among other things, the Embassy noted Brazilian Decree No. 4851, of October 2, 2003, which defines ‘‘Cachaça’’ as ‘‘the typical and exclusive designation of the sugar cane aguardente produced in Brazil, with an alcohol content of 38 to 48 percent by volume at 20 degrees Celsius, obtained from the distillation of the fermented must of sugar cane with specific sensory characteristics, to which up to six grams of sugar per liter may be added, expressed in terms of sucrose.’’

Brazil requested that TTB initiate regulatory action to recognize Cachaça as a typically and exclusively Brazilian beverage.

In addition, following discussions between officials of Brazil and the Office of the United States Trade Representative (USTR), and after consultations between USTR, and TTB, the United States Trade Representative and Brazil’s Minister of Development, Industry, and Foreign Trade signed an agreement on April 9, 2012, setting out a procedure that could lead each party to recognize certain distinctive distilled spirits produced in the other party’s territory, including Cachaça.

Now, the above isn’t to say that it would necessarily take another
country twelve years as well to get a SOI. Rather, it does show that the U.S.
process can work, albeit very slowly.

In short, if a country desires a U.S. standard of identity for
their rum, it would behoove them to start the process now.

As an interesting side note, there is currently a proposal
underway to modernize the TTB’s alcoholic beverage regulations: Notice No.
176: Modernization of the Labeling and Advertising Regulations for Wine,
Distilled Spirits, and Malt Beverages
. Public commentary on this proposal
closed in June 2019. One proposal made via public comment was the establishment
of “Straight Rum” as an SOI. While undoubtedly a step forward for rum, it does
not address the issue of per-country rum SOIs.

I’m no expert on the ins and out of the TTB, and how a country
might initiate a SOI petition. However, Hogue included this useful bit in his
reply to me:

Petitions to amend the regulations should be sent to the Regulations and Rulings Division (RRD).  Petitions are evaluated on a case-by-case basis as we are able to dedicate resources to the review.  Accepted petitions to change the regulations could potentially be bundled.  Petitioners are informed of the decision and reasoning behind the decision.  Keep in mind, decisions are made based on input from other, impacted USG stakeholders.

In short, the adage “Must be present to win” applies here. A
country with a GI won’t automatically get recognition by the U.S. unless they
ask.

Hopefully, countries such as Jamaica have already begun the
petition process to obtain a standard of identity, and we simply don’t know
about it yet. We wouldn’t know, as the TTB is notoriously opaque. However,
petitioning countries could indicate to enthusiasts that a petition has been
filed. And if a country isn’t aware of the U.S. standards of identity process, they
now have a starting point from which to begin.

If I learn anything more about rum countries pursuing U.S.
standards of identity, I will update this story.

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