Legal Definition per the Code of Federal Regulations

[sleepy]

Since the word "legal" has been appearing more regularly:

Full code here.

ELECTRONIC CODE OF FEDERAL REGULATIONS
e-CFR Data is current as of June 13, 2014


Title 27: Alcohol, Tobacco Products and Firearms
PART 5—LABELING AND ADVERTISING OF DISTILLED SPIRITS

Subpart C—Standards of Identity for Distilled Spirits

§5.22 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):

(f) Class 6; rum. “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.

(1) “Cachaça” is rum that is a distinctive product of Brazil, manufactured in Brazil in compliance with the laws of Brazil regulating the manufacture of Cachaça for consumption in that country. The word “Cachaça” may be spelled with or without the diacritic mark (i.e., “Cachaça” or “Cachaca”).

(Hmm! But...)

§5.23 Alteration of class and type.
(a) Additions. (1) The addition of any coloring, flavoring, or blending materials to any class and type of distilled spirits, except as otherwise provided in this section, alters the class and type thereof and the product shall be appropriately redesignated.

(2) There may be added to any class or type of distilled spirits, without changing the class or type thereof, (i) such harmless coloring, flavoring, or blending materials as are an essential component part of the particular class or type of distilled spirits to which added, and (ii) harmless coloring, flavoring, or blending materials such as caramel, straight malt or straight rye malt whiskies, fruit juices, sugar, infusion of oak chips when approved by the Administrator, or wine, which are not an essential component part of the particular distilled spirits to which added, but which are customarily employed therein in accordance with established trade usage, if such coloring, flavoring, or blending materials do not total more than 21⁄2 percent by volume of the finished product.

(3) “Harmless coloring, flavoring, and blending materials” shall not include (i) any material which would render the product to which it is added an imitation, or (ii) any material, other than caramel, infusion of oak chips, and sugar, in the case of Cognac brandy; or (iii) any material whatsoever in the case of neutral spirits or straight whiskey, except that vodka may be treated with sugar in an amount not to exceed 2 grams per liter and a trace amount of citric acid.

(b) Extractions. The removal from any distilled spirits of any constituents to such an extent that the product does not possess the taste, aroma, and characteristics generally attributed to that class or type of distilled spirits alters the class and type thereof, and the product shall be appropriately redesignated. In addition, in the case of straight whisky the removal of more than 15 percent of the fixed acids, or volatile acids, or esters, or soluble solids, or higher alcohols, or more than 25 percent of the soluble color, shall be deemed to alter the class or type thereof.

(c) Exceptions. (1) This section shall not be construed as in any manner modifying the standards of identity for cordials and liqueurs, flavored brandy, flavored gin, flavored rum, flavored vodka, and flavored whisky or as authorizing any product which is defined in §5.22(j), Class 10, as an imitation to be otherwise designated.

If anyone can read this legalese gibberish, does paragraph a2 above really pretty much say anything goes (but if in doubt, bribe the Administrator)?

[Capn Jimbo]

Here we go again...


Kudo's to Sleepy for having the patience and interest to actually find, read and consider the actual regulations. Believe me I went through these ad infinitum, contacting other experts, and even calling the appropriate government department. This subject has been covered long ago (link at the end).


Let's start with the paragraph in question:

"(2) There may be added to any class or type of distilled spirits, without changing the class or type thereof, (i) such harmless coloring, flavoring, or blending materials as are an essential component part of the particular class or type of distilled spirits to which added, and (ii) harmless coloring, flavoring, or blending materials such as caramel, straight malt or straight rye malt whiskies, fruit juices, sugar, infusion of oak chips when approved by the Administrator, or wine, which are not an essential component part of the particular distilled spirits to which added, but which are customarily employed therein in accordance with established trade usage, if such coloring, flavoring, or blending materials do not total more than 21⁄2 percent by volume of the finished product."

BTW, this - in typical lobbied fashion - is dense and is actually a single sentence. Good grief. It appears to allow anything, but only if you ignore two very important (highlighted) limiters:

1. "...essential component part": this limiter means that certain components may be added, but ONLY if "essential" to production of that class. For example, sugar cane or molasses are an essential component. Ibid for water. An essential component is not optional, it is mandatory.

It should be obvious that sugar, glycerol and other adulterants are not in the least essential, particularly in view of the many pure "rums" that exist and were made without these additives. These additives are not essential, and may not be added under this limiter. Next...

2. "...established trade usage": another limiter. "Established trade usage" is a legal concept that means a practice is so common that it is legally expected and enforceable. OK, now it's tough, but let me explain. In layman's terms "established trade usage" is well beyond "common practice" and has become "standard practice". For example if you buy a home it is standard practice for the buyer to pay for the appraisal. In other words, "established trade usage" means that all parties - all the distillers and all the buyers expect the individual practice to be the same.

Applied to "Rum" this means that if vanilla flavoring is used by all, then we expect it to be there, and adding vanilla flavoring has become "established trade usage". If adding vanilla flavoring is optional, if not all the distillers add it, then vanilla flavoring is not "established trade usage". Capish?


But there's more...

Now consider the "Exceptions Clause" which you also quoted:

"(c) Exceptions. (1) This section shall not be construed as in any manner modifying the standards of identity for cordials and liqueurs, flavored brandy, flavored gin, flavored rum, flavored vodka, and flavored whisky or as authorizing any product which is defined in §5.22(j), Class 10, as an imitation to be otherwise designated. "

What this means that even if an additive sneaks through by being found "essential" or "established trade usage", it still has to deal with the Exceptions Clause which in simple words, says that such additions do not escape the standard for flavored rum:

"(i) Class 9; flavored brandy, flavored gin, flavored rum, flavored vodka, and flavored whisky. "Flavored brandy, "flavored gin," "flavored rum," "flavored vodka," and "flavored whisky," are brandy, gin, rum vodka, and whisky, respectively, to which have been added natural flavoring materials, with or without the addition of sugar, and bottled at not less than 60° proof. The name of the predominant flavor shall appear as a part of the designation. "

This one is simple: add flavoring materials, including sugar and it must be labeled "Flavored Rum" and get this, with the predominant flavor listed, eg "Preacher's Pomegranate Passion Rum".

But yes, there's one last factor: you may have heard the saying "A Court speaks through it's journal" (findings). In sum laws and regulations are truly meaningful via their application and decisions (which are published for spirits). In sum, it is fair to say that the regulations are actually pretty clear re additives and flavorings - but these are ignored, evaded and/or weakly enforced.

Exhibit A: Ron Matusalem, and soon the ALKO government findings when they finally reach the United States by tall sailing ships...



*******
http://www.rumproject.com/rumforum/viewtopic.php?t=622

[sleepy]

Well, duh! ATF has serious fires burning - half-brained congressmen want to carry weapons on the House floor!

But seriously, there are holes in those regulations that you could drive an armored division through. The only absolute violation apparent is the extreme Z's which are probably well beyond 2-1/2% additives.

"Established trade usage": I'm doubtful about Jimbo's definition here I think that this may be more like "common and widely accepted practice" rather than "legally expected and required". "Customarily employed" does not mean "universally employed". I'm neither a lawyer nor a Jesuit, but I'm pretty damned sure that there is a LOT of wriggle room in sub-paragraph a2.

I would venture that, given the data uncovered by widespread sources, that adding sugar (cited as allowable) passes as current "established trade usage". I suppose that one could ask the Administrator.

Caramel - more likely "traditional" than "established".

I have no clear idea of how to go forward. Clarifying the regulatory definition of what can be called rum (maybe "pure rum"?) in the regulations to meet "purity" standards seems impossible without megabucks to stave off producer lawyers arguing competitive disadvantage, blah, blah..

Not good!

Hmm, not impossible:
Pusser's "flavored rum"
Matusalem "flavored rum"
Gosling's "flavored rum"

oops.

Z... "flavored rum" call the sharks, starved sharks or they'll grant the lawyers professional courtesy!

<shrug>

Jimbo, my friend, it ain't simple and sure as hell ain't black and white.

Maybe the next petition is to the ATF to modify the regs to simply require that any substance other than water added to rum post-distillation be clearly noted on the label.

[Capn Jimbo]

""Established trade usage": I'm doubtful about Jimbo's definition here I think that this may be more like "common and widely accepted practice" rather than "legally expected and required". "Customarily employed" does not mean "universally employed". I'm neither a lawyer nor a Jesuit, but I'm pretty damned sure that there is a LOT of wriggle room in sub-paragraph a2.

I would venture that, given the data uncovered by widespread sources, that adding sugar (cited as allowable) passes as current "established trade usage". I suppose that one could ask the Administrator."

I did ask one of the Administrator's staff, who hedged and could only suggest an FOI request. Believe me I feel for anyone who is not a corporate attorney who tries to interpret these regs.

FWIW, in one of my past lives I performed legal research, so believe me when I say "Established Trade Practice" is a VERY long and well-established term in law. ETP goes well beyond "common practice" to the point that legally anyway, if adding sugar was an ETP, and I ordered a bulk rum from you I would expect it to be sugared. If it wasn't I could then sue you for not delivering the "rum" I ordered. Established trade practice takes the force of law. So again - if sugar (or any other adulterant) was considered an "Established Trade Practice", then all rum MUST be sugared to legally be called "rum". Capish?

And further, it is essential to differentiate between regulation and the enforcement of them, just as it is in the law. Laws and regulations are written; but a court or an administrative body may then INTERPRET them and publish their findings. It is the findings which establish precedent. And the ATB does publish them, but you have to know how to find and to interpret them.


Bottom line:

The regs are very clear. Even if an additive passes the "essential component" and/or the "established trade practice" tests, they still must then pass the definition of "flavored rum", which are VERY simple and clear insofar as sugar.

There's no escape: sugar means "flavored rum", no question, insofar as the regs. Case closed; however we are then dependent on compliance by the companies (poor), and enforcement by the bureau (very weak), and assuming even both these happen (don't hold your breath), then any alleged violation must then be examined and decided by the Administrator, whose decision is then published.


Simply: the regs are clear, but so the fack what.

They are not complied with, and no one is really complaining, ergo no examination, no alleged violations or findings. Exhibit A: Matusalem. No better case could have been made (ie a Federal Court finding, which cannot be ignored), the facts were presented and allegedly examined, yet have you seen any change in their labels?

Nor will they discuss their findings without an official FOI request. The only hope here is that the bureau will become aware of the ALKO and other tests, though I suppose if they can ignore a finding of the US Federal Appeals Court, well...

Nada...

[JaRiMi]

European Union legislation states the following:

ANNEX II

SPIRIT DRINKS

Categories of spirit drinks

1. Rum

(a) Rum is:

(i) a spirit drink produced exclusively by alcoholic fermentation and distillation, either from molasses or syrup produced in the manufacture of cane sugar or from sugar-cane juice itself and distilled at less than 96 % vol. so that the distillate has the discernible specific organoleptic characteristics of rum, or

(ii) a spirit drink produced exclusively by alcoholic fermentation and distillation of sugar-cane juice which has the aromatic characteristics specific to rum and a volatile substances content equal to or exceeding 225 grams per hectolitre of 100 % vol. alcohol. This spirit may be placed on the market with the word "agricultural" qualifying the sales denomination "rum" accompanied by any of the geographical indications of the French Overseas Departments and the Autonomous Region of Madeira as registered in Annex III.

(b) The minimum alcoholic strength by volume of rum shall be 37,5 %.

(c) No addition of alcohol as defined in Annex I(5), diluted or not, shall take place.

(d) Rum shall not be flavoured.

(e) Rum may only contain added caramel as a means to adapt colour.

(f) The word "traditionnel" may supplement any of the geographical indications mentioned in category 1 of Annex III where the rum is produced by distillation at less than 90 % vol., after alcoholic fermentation of alcohol-producing materials originating exclusively in the place of production considered. This rum must have a volatile substances content equal to or exceeding 225 grams per hectolitre of 100 % vol. alcohol and must not be sweetened. The use of the word "traditionnel" does not prevent the use of the terms "from sugar production" or "agricultural" which may be added to the sales denomination "rum" and to geographical indications.

This provision shall not affect the use of the word "traditionnel" for all products not covered by this provision, according to their own specific criteria.


---------


No additives.

http://eur-lex.europa.eu/legal-content/ ... 32008R0110

[Hassouni]

So the majority of producers selling rum are in violation of EU regs? Have they just not been challenged before?

[sleepy]

Fantastic reply - thank you Capn!

I started this thread to "disambiguate" (hideous wiki word) the discussion. The clarification that you have provided suggests a couple avenues forward: a petition to the ATF Administrator to begin enforcing the existing regulations, given the current rampant violations of them, or, a good old-fashioned letter writing campaign - bury them in paper (if anyone still remembers how to apply a stamp - e-mail campaigns are too easy to ignore and flush)!

Although I enjoy several rums which are definitely altered, I wholeheartedly agree that we, the consumers, deserve honesty in labeling. Whether that is adding the honorific "pure rum" to only those rums that add only water to bring the distillate to bottle strength (caramel for color?) or simply making any labeling other than "flavored rum" limited to strictest interpretation of the regs.

Thanks again, Jimbo - you keep it interesting!

(...and I hope Sue's recovery is going well, and so continues!)

[sleepy]

Wow - Euro regs are clear and unambiguous! Enforced about as well as the US regs!