Bourbon Justice: How Whiskey Law Shaped America

Bourbon & Barns recently caught up with Brian Haara, author of the new book Bourbon Justice: How Whiskey Law Shaped America. Attentive readers may remember Brian is a Louisville attorney, history fan and bourbon enthusiast who writes the Sipp’n Corn blog (now found at www.brianhaara.com). He even kindly shared a very interesting post about the Bottled in Bond Act with this blog last year.

Check out the interview about Brian’s new book and links for purchase below:

Bourbon & Barns: Brian, I understand you are an attorney in Louisville. Can you tell us a little about your background? Does any of your law practice concentrate on the bourbon industry? What does that entail? 

Brian Haara: I moved to Kentucky in 1993 to attend law school at the University of Kentucky, and then moved to Louisville in 1996 and began practicing law.  I’ve lived here ever since.

I solve problems for businesses and entrepreneurs, whether they’re involved in litigation or they’re trying to avoid litigation.  In 2007, along with two of my law partners, we broke off from our old firm and founded Tachau Meek PLC, which is a business litigation boutique firm.  I like to imagine that we’re the type of firm that Col. E. H. Taylor, Jr. would have hired for his overabundance of litigation.

And yes, that means that part of my practice involves representing clients who own distilleries, who are employed at distilleries, and who need legal advice on distilling, blending, or selling spirits.  Part of that involves bourbon trademark litigation, which happens to be a prominent part of Bourbon Justice.

B&B: So what compelled you to write this book? Was there a particular case that sparked your interest?

BH: I stumbled upon Pepper v. Labrot, a bourbon trademark case from the late 1800’s, in 2013 and I was hooked.  I have always been a history fan, I had been a bourbon enthusiast since before it was cool, and suddenly I found a case that blended history, law, and bourbon.  So I researched more and was fascinated by what I found and how often it told a different story than the standard marketing line.

My first step was starting my Sipp’n Corn® blog almost immediately after finding Pepper v. Labrot.  I wanted to share my newfound discovery that dusty bourbon lawsuits tell the story of historic brands while also leading the development of American commercial law and telling the story of our nation.  I learned that bourbon and history go hand-in-hand and that I could rely on historic lawsuits from the late 1800’s and early 1900’s to provide proven facts that were found by courts to be reliable, as opposed to notoriously unreliable oral history and marketing legends.

Then I discovered that bourbon is still at the leading edge of commercial law and governmental regulation today, and with a little encouragement from readers, I realized that other people found this perspective interesting too.

Writing a book was always the ultimate goal; I just needed to research enough material first and find a way to tie it all together.

B&B: You've written previously on this blog about the Bottled in Bond Act and its impact on the bourbon industry and beyond. Are there other cases and laws that have as broad and longstanding an impact as the Bottled in Bond Act?

BH: The Bottled in Bond Act—even though the finer details have changed over time—is one of the mainstays of American law.  It was our nation’s first consumer protection law so it deserves its place of prominence not just in bourbon lore, but also for American history.

Bourbon Justice covers other cases that had a lasting impact on American history too, like establishing and expanding trademark rights, setting limits on the ability to use your own surname in business, protecting people from unreasonable searches and seizures, fostering workplace safety laws, and much, much more.  Bourbon law really provides the fabric of today’s laws.

I included “Beyond Bourbon” features in Bourbon Justice that tie some of the historic bourbon lawsuits to current-day commercials and advertising that we’ve all seen—and which have caused recent legal problems for brands like Victoria’s Secret, Listerine, Papa John’s, and Skechers.  Historic bourbon lawsuits set the stage for laws impacting all of today’s advertising, but nothing else can match the Bottled in Bond Act.

B&B: The Prohibition era is certainly a landmark moment in bourbon history as well as American history in general. Does your book address Prohibition? What do you think are some of the lessons we can take away from Prohibition?

BH: Yes, Bourbon Justice addresses Prohibition, but I decided to take a different approach since it has been addressed so frequently by others.  Bourbon Justice looks at Prohibition through temperance-biased judges who let those personal or political or moral views influence the outcome of cases against distillers.  I also dive into how Prohibition led to more merchant bottling after Repeal and how Prohibition-era laws still impact spirits regulation today.

Bourbon Justice tries to avoid getting too caught up in lessons so that readers can draw their own conclusions and parallels to today’s world, but personally I believe that the unmitigated disaster of Prohibition should teach Americans about the dangers of legislating morality and the danger of nanny-state politicians.  Our country is based on freedom, not on big government suppression of freedom.

B&B: What was your research process like for this book? What surprised you most during the course of your research? 

BH: My research for Bourbon Justice started much like research for any of my clients, which involves reading appellate court decisions, but I realized pretty quickly that I needed to explore the underlying facts more thoroughly.  So my wife, Laura (who is also an attorney), went to the Kentucky State Archives in Frankfort, Kentucky, which houses old court files that survived fires, floods, and document purges.

What we found was amazing—original deposition transcripts; original trial exhibits; original evidence; and original affidavits.  This gave me exactly what I needed to tell historical stories instead of dry history lectures.

And that’s what led to my surprise—current-day brands do not always tell these intriguing historical stories, but instead some of them get too wrapped up in marketing and exaggeration.  Truth is better than fiction for most storied brands.

B&B: Please add anything else you'd like to add. 

BH: Did you know that the phrase “brand name” originated with bourbon?   Or that the federal government apparently cared less about protecting citizens from dangerous products and adulterated food than it did ensuring that whiskey was pure?  This is the sort of information that I found preserved by bourbon law, possibly along with the true history about your favorite bourbon brand.

I never expected bourbon law to be such a bountiful resource beyond just bourbon, and I suspect that’s why Bourbon Justice has been so popular outside of niche bourbon and legal circles.

Links for purchase:

Signed copies: https://brianhaara.com/buy-bourbon-justice/

Amazon: https://amzn.to/2SP0l8F

Potomac Books: https://bit.ly/2QTkhtq

New Feature: Blog Partner Explores Bourbon through Lawsuits

Bourbon & Barns is proud to partner with our friends at Sipp'n Corn to present a new feature that explores the history of Bourbon through historical lawsuits. Louisville attorney Brian Haara has done extensive research on his blog at sippncorn.blogspot.com to provide helpful insight into Bourbon lawsuits, some of which will also be posted here at www.bourbonandbarns.com/blog. 

Today, we look at the Bottled in Bond Act of 1897, which was an early consumer protection law that still impacts the industry today. You can still find the phrase "Bottled in Bond" on many Bourbon bottles today. 

“Bottled in Bond” – Bourbon Propels Early Consumer Protection Law

The Bottled-In-Bond Act was passed this week in 1897.  But now, nearly 120 years later, is “Bottled in Bond” just an archaic designation?  Does it ensure that your bourbon is better than without the designation?  Why doesn’t every 100-proof bourbon carry this designation?  All good questions to ponder over a glass of “BIB” bourbon.

The Bottled-In-Bond Act of 1897 (29 Stat. 626, Comp. St. § 6070 et seq.) was drafted to protect the public and to give assurances about the actual spirits contained in a bottle.  Among other requirements, the Act required that any spirit labeled as “Bottled-in-Bond” identify and be the product of one distiller at one distillery during one distillation season, be aged in a federally-bonded warehouse under federal governmental supervision for at least four years, have no additives, be bottled at exactly 100 proof and be sealed with an engraved strip stamp.

As noted in earlier posts (Kentucky Wasn't Big Enought for two Col. Taylors and E. H. Taylor, Jr. Review), Col. E. H. Taylor, Jr. was the driving force behind the ActWhile Col. Taylor, George T. Stagg, and many other Kentucky distillers were making true straight bourbon whiskey, rectifiers, blenders and charlatans were blending neutral spirits (and sometimes bourbon or other whiskey) with additives, and passing off these much cheaper spirits as bourbon. 

The Kentucky Court of Appeals, in E. H. Taylor, Jr. & Sons Co. v. Marion E. Taylor, 27 Ky.L.Rptr., 124 Ky. 173, 85 S.W. 1085 (1905), noted the difference between blended whiskey and straight bourbon:

Rectified or blended whisky is known to the trade as “single-stamp whisky,” while bonded whisky is known as “double-stamp goods.”  The proof shows that the rectifiers or blenders take a barrel of whisky, and draw off a large part of it, filling it up with water, and then adding spirits or other chemicals to make it proof, and give it age, bead, etc.  The proof also shows that from 50 to 75 percent of the whisky sold in the United States now is blended whisky, and that a large part of the trade prefer it to the straight goods.  It is a cheaper article, and there is therefore a temptation to simulate the more expensive whisky.

Blenders and rectifiers could make their product in hours or days, compared to the years of aging required for bourbon.  Lower distillation costs, zero barreling and aging costs, and the speed of getting their product to the market gave blenders and rectifiers a tremendous competitive advantage.  To make matters worse, no law prevented them from still calling their product “bourbon.”

The real bourbon distillers needed to protect their brands and profits, and the politically-acceptable way to accomplish this was to sell it as a consumer-protection law.  Not all blenders and rectifiers were bad, but there were reports of hazardous additives, and consumers had a right to know what was in their bottles.

So E. H. Taylor, Jr. – who was himself an extremely well-connected politician – helped push through the Bottled-in-Bond Act of 1897 with the help of then U.S. Secretary of the Treasury, John G. Carlisle (a former U.S. Congressman and Senator from Northern Kentucky).  Perhaps not coincidentally, the second distillery built in 1880 next to the O.F.C. was named the Carlisle Distillery.

As an added benefit to bourbon distillers, they got a tax break.  Normally, distillers would pay taxes on the bourbon aging in their warehouses, but under the Act, they would not pay taxes until it was bottled, and only on what they bottled (thus avoiding taxation on the angel’s share).  The consumers received the government’s solemn guarantee that the contents of the bottle was exactly as stated on the label, and that there were no additives.  As explained by the Sixth Circuit Court of Appeals in W. A. Gaines & Co. v. Turner-Looker Co., 204 F. 553 (6th Cir. 1913), this was not a guarantee of quality, but it was a guarantee of the purity and authenticity of the contents. 

Since 1901 (the first year BIB bourbon was available; it had to age four years after passage of the Act in 1897), the restrictions have been loosened, but it took over eighty years.  In the de-regulation climate of the 1980’s, BIB no longer required a tax stamp with the season and year made and bottled, so now brands no longer have to disclose the age.  The current restrictions are found in the Federal Regulations, requiring the contents to be a single type of spirit, produced in the same distilling season by the same distiller at the same distillery, aged at least four years, unaltered (except that filtration and proofing is permitted), and proofed with pure water to exactly 100 proof.  27 C.F.R. § 5.42(b)(3).

Not all 100-proof bourbons meet these criteria, so they’re not all labeled BIB.  Some that could seemingly meet the criteria (like Four Roses Single Barrel or Rock Hill Farms) aren’t labeled BIB, but they certainly stand on their own merits without any governmental assurances.  In the end, the BIB label doesn’t ensure that you’re buying good bourbon, but it does tell you more information about what you’re drinking.

To celebrate the 117th anniversary this week of the Bottled-in-Bond Act, soon I’ll be posting the results of the “Bottled in Bond Challenge,” which compared three BIB bourbons in three price ranges – under $20, under $30 and under $40 – Old Grand-Dad Bottled in Bond; Henry McKenna Single Barrel 10-Year Bottled in Bond; and E. H. Taylor, Jr. Small Batch Bottled in Bond.  Stay tuned!