Good Spirits: The law, lore, and libation of Irish Whiskey

Special to the Legal News Originating in Ireland, the production of whiskey traveled across the Irish Sea to Scotland, then to the United States and Canada. Enjoying widespread popularity, especially on St. Patrick's Day, Irish whiskey is one of the world's great styles of whiskey and is known for having a delicate toasted honey flavor. But before we taste it, let's start with the law. The same set of rules that mundanely codify the edicts published by the Federal Register of the executive departments and agencies of the Federal Government also address something of interest to many an attorney--alcohol, including Irish whiskey. Yes, even Irish, as well as Canadian and Scotch whiskies are addressed in the U.S. Code of Federal Regulations. The standards of identity for distilled spirits, including several kinds of whiskey, are set forth in 27 CFR 5.22. Whiskey, or whisky, depending on the country and distiller--American and Irish producers prefer "ey," whereas Scottish and Canadian producers opt for the "y" ending--is the Anglicized version of the Gaelic term for "water of life." The Code of Federal Regulations, notwithstanding what's printed on the bottle by most American distillers, also uses the shorter version. Part 5.22(b) of Title 27 defines whisky as: "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." To summarize, the government says that all whiskey must be: 1) distilled; 2) from a fermented mash (water and yeasts added) of grain (e.g. rye, barley, corn, wheat, or malted barley); 3) to no more than 190 proof (i.e. to a maximum of about 95 percent alcohol, so as to leave some of the flavor of the grains behind and not converted to additional alcohol); 4) aged in oak barrels, other than corn whiskey which is not; and, 5) watered down to no more than 80 proof (about 40 percent alcohol.) Oh, it also has to smell and taste like whiskey. But what is "Irish whiskey"? The regulations speak to that as well. Per 27 CFR 5.22(b)(8), it is a spirit manufactured either in the Republic of Ireland, or in Northern Ireland, in compliance with their laws regulating the manufacture of Irish whiskey, but if it is a mixture of whiskies, it has to say "blended Irish whisky." Three common brands of blended Irish whiskey are Bushmills, Jameson's, and Tullamore Dew. So, the United States defers to Irish law in defining how Irish whiskey is to be produced. Probably wise, given that they've been making it there for over 400 years. In 1608, Bushmills was given a grant to distill by King James. We skip across the Atlantic to take a look at Irish law for additional definition. The Oireachtas, Ireland's bi-cameral national legislature, in the Irish Whiskey Act of 1980, recodified the prior act of the same name from 1950. That's Act Number 33 of 1980 for all you lawyers who read this newspaper looking for legal citations. The Irish Whiskey Act codified the long-established process for making Irish whiskey and states that the spirits shall have been distilled in the State (Ireland) or in Northern Ireland from a mash of cereals which has been: 1) Saccharified by the diastase of malt contained therein, with or without other natural diastases; 2) Fermented by the action of yeast; 3) Distilled at an alcoholic strength of less than 94.8 percent by volume in such a way that the distillate has an aroma and flavour derived from the materials used; and 4) Shall have been matured in wooden casks in a warehouse in the State (Ireland), or Northern Ireland, or a combination, for a period of not less than three years. "Saccharified by the diastase of malt" means to take a grain, in this case barley, and moisten it so that it sprouts and begins to germinate. This converts some of the starches to sugars (hence, saccharified) and this separation (which is what diastase means) releases enzymes that aid in the fermentation (the conversion from sugar to alcohol) of the grains. But, the germination (i.e. malting) process has to be stopped, lest a plant develop, thereby using up all the starch. So, heat is used to arrest that process. For Irish whiskey, which is known for its smooth flavor, indirect heat from kilns is used to stop the barley from further germination; in the case of Scotch, known for its smoky aroma, a peat-fueled fire is used. Regarding the use of "other natural diastase," that simply means other grains, usually unmalted barley or corn, can be used along with the malted barley. Like U.S. law, Irish law requires that the distillation stop below 100 percent. Stateside, the maximum is 95 percent; in Ireland, it's 94.8 percent. But unlike the Code of Federal Regulations which specify new, charred oak barrels for the minimum two-year aging process, the Irish Whiskey Act does not require new barrels but requires a 50 percent longer minimum aging period of three years. Typically, oak barrels that have been previously used to age port, sherry, rum, or bourbon are used. Recall that all American whiskey has to be aged in new oak barrels, thus creating a constant supply for Irish distillers to use to age their product. While three years is the minimum aging period, several distillers age Irish whiskey for as long as 10, 12, 16, or 21 years to further develop honey, vanilla, and raisin flavors from bourbon barrels or sherry casks. Although not codified in Irish law, Irish whiskey is usually triple-distilled, resulting in a smoother tasting whiskey than other types. By way of comparison, most Scotch is double-distilled (meaning that the alcohol--which evaporates at a lower temperature than water when heated--is heated up a second time to further remove impurities) and American whiskies are generally only distilled once. And now, for some lore: Irish Coffee. Travelers to Fisherman's Wharf in San Francisco may know of a landmark tavern famous for serving Irish Coffee in preheated glass goblets. As the story goes, the then-owner of The Buena Vista had been in Ireland, was served a coffee and liquor concoction at the Shannon Airport in 1952, and was fascinated by the taste and textures of the drink. Once back in San Francisco, he enlisted the help of an acclaimed international travel writer, Stanton Delaplane, to help him recreate the drink. The mayor of San Francisco, also a dairy farmer, helped the two of them get the texture of the heavy cream just right since it has to be floated atop the drink. The Buena Vista (which charges $7.50 for their version and serves up to 2,000 glasses a day) uses Tullamore Dew but any blended Irish whiskey can be used. Finally, the libation. Here's the recipe for Irish Coffee: 1. Preheat a mug, or a tall narrow glass with a handle, with hot water; 2. Whisk some heavy cream, not quite to the stage of whipping cream, and set aside; 3. Empty the water and place a sugar cube into the mug or glass; 4. Pour 6 oz of coffee in the preheated mug; 5. Add a shot (1 1/2 oz) of blended Irish whiskey and stir; 6. Float, by gently pouring over a spoon, the heavy cream on top; 7. No garnish is needed, but a very small amount of green crème de menthe can be drizzled on top to give it a festive Emerald Isle feeling often called for on St. Patrick's Day; 8. As always, drink responsibly. Published: Thu, Mar 17, 2011

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