Posted by Arctic Wolf on September 12, 2010

This discussion as I call it, is really a walk through of the rules and regulations of the US regulatory framework pertaining to what can and what cannot be identified and labelled as ‘rum’ in the USA. This framework sets forth the criteria for labelling  of rum and when such labels must identify additives and flavouring agents. The final section deals with age statements and the criteria surrounding them. This walk through is purely my opinion as to what the regulations are saying do not constitute any legal expertise on the subject. Please do not believe that I have written the definitive word on this subject as many of my conjectures are merely that, conjectures.

The relevant section of the regulation begins here:

27 C.F.R. § 5.22   The standards of identity.

Title 27 – Alcohol, Tobacco Products and Firearms

Let’s start with the identification of Rum

§ 5.22 (f)  Class 6; Rum   (The standards of identity)

(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.

This is the basic starting clause for defining rum in the US. It is very clear and says that rum is made from distilled sugar cane by-products; rum must be bottled at not less than 80 proof, and we have a proviso that the rum must only contain mixtures of rum distillates.

The proviso is a clear statement that rum must be made solely from sugarcane by products, and not other spirits such as neutral grain spirits.

The next clause which mentions rum deals with cordials and liqueurs specifically rum liqueur and is found in

§ 5.22 h 4

(4) “Rum liqueur,” “gin liqueur,” “brandy liqueur,” are liqueurs, bottled at not less than 60 proof, in which the distilled spirits used are entirely rum, gin, or brandy, respectively, and which possess, respectively, a predominant characteristic rum, gin, or brandy flavor derived from the distilled spirits used. In the case of brandy liqueur, the type of brandy must be stated in accordance with §5.22(d), except that liqueurs made entirely with grape brandy may be designated simply as “brandy liqueur.” Wine, if used, must be within the 2 1/2 percent limitation provided for in §5.23 for harmless coloring, flavoring, and blending materials.

My reading of the clause indicates that if the spirit is less than 80 proof, but more than 60 proof we must call it a liqueur, in the US.  I believe this is somewhat different from the Canadian Regulation which allows identification of rum at a lower proof. Therefore in Canada, we have certain Cuban Rums like Legendario which are sold as rum but in the US (if Cuban rums were actually allowed) they would be classified as rum liqueurs. (I may be wrong about the Canadian Regulations and must find further clarification.)

Again the distilled spirit from which these are generated must not include neutral grains. At this point the regulations do not allow the distillate to be anything other than sugar cane by-products.  And at this point, no additives are allowed.

Now we can move to § 5.22 i which deals with flavored rum, specifically:

§ 5.22 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. If the finished product contains more than 2 1/2 percent by volume of wine, the kinds and percentages by volume of wine must be stated as a part of the designation, except that a flavored brandy may contain an additional 12 1/2 percent by volume of wine, without label disclosure, if the additional wine is derived from the particular fruit corresponding to the labeled flavor of the product.

What I find interesting here is that we have the first mention of flavorings being allowed. There is no limit set as to the amount of flavoring allowed; but, the name of the predominant flavor must be stated. The flavors are specified as “natural” with or without sugar. At this point if the regulations were not continued it would be my interpretation that any flavoring added would cause the spirit to be identified as a ‘flavored rum’ and the predominant flavor would have to be specified. As well, only natural flavors would be allowed. We also have the bottling proof limit being lowered to match that of rum liqueur.

Next the regulations deal with imitations under § 5.22 j class 10

(j) Class 10; imitations. Imitations shall bear, as a part of the designation thereof, the word “imitation” and shall include the following:

(1) Any class or type of distilled spirits to which has been added coloring or flavoring material of such nature as to cause the resultant product to simulate any other class or type of distilled spirits;

Basically, it is not allowed to use neutral grain spirits flavored with rum to be labelled as rum.  Nor is it allowed to flavor another type of distilled spirit, say whisky and to call it rum.

(2) Any class or type of distilled spirits (other than distilled spirits required under §5.35 to bear a distinctive or fanciful name and a truthful and adequate statement of composition) to which has been added flavors considered to be artificial or imitation. In determining whether a flavor is artificial or imitation, recognition will be given to what is considered to be “good commercial practice” in the flavor manufacturing industry;

This clause says that any added flavor which is considered to be artificial or an imitation shall result in the spirit being labelled as an imitation.

This clause surprises me a little, but notice the reference to “good commercial practice”. The “good commercial practice” reference has red flags dancing all around it. Probably I need to find out if this term is defined elsewhere in the regulations or if it is sitting there like a reed in the wind waiting to be bent. It would be my interpretation that latitude is given in this section to allow flavors such as extracts, or flavors commonly used in the flavor manufacturing industry which are not required to be considered imitations or required to be considered artificial but may not be ‘natural’ either.

(3) Any class of type of distilled spirits (except cordials, liqueurs and specialties marketed under labels which do not indicate or imply, that a particular class or type of distilled spirits was used in the manufacture thereof) to which has been added any whisky essense, brandy essence, rum essence, or similar essence or extract which simulates or enhances, or is used by the trade or in the particular product to simulate or enhance, the characteristics of any class or type of distilled spirits;

This means no rum extract or rum essence may be added to enhance the flavor of a rum.

(5) Any rum to which neutral spirits or distilled spirits other than rum have been added;

This is consistent with previous clauses which define rum as being distilled solely from sugar cane by-products.

In the entire imitations section the intent to me is clearly that an artificial means of obtaining the rum flavor must not be employed, and for flavored rums, imitation or artificial flavors must not be used without noting it on the label. The only proviso is that standard practices of the flavoring industry are recognized as non artificial, and non imitation.

Sections § 5.22 k and l deal with geographical concerns which do not seem to form any part of my basic discussion and I have omitted them.

Now we come to the crux of the matter:

§ 5.23   Alteration of class and type.

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.

This is very clear.  If anything is added to the spirit except as covered in Section 5.23 the product must be redesignated.  So our understanding of 5.23 is really the most important aspect of this discussion.

The first clause § 5.23 2 is a doozey:

(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 2 1/2 percent by volume of the finished product.

Wow! Here we have the first indication that something other than distilled sugar cane products may be added without changing the labelling requirements and without changing the class and type of spirit. What is allowed first in part i) of the clause is harmless coloring, flavoring, or blending materials as are an essential component of the particular spirit we are dealing with, in our case rum.

Notice how ‘harmless coloring’, is listed separately from ‘flavoring’. The reference to blending materials seems to be more of a description of what is meant by harmless coloring and flavoring, but it is listed separately, so I think we should treat it as such. The conclusion I reach from the first part of this is that indeed coloring and flavorings and blending materials are allowed, but they must be an essential component of the class of distilled spirit to be allowed.  Here we have our second red flag.  Namely what is meant by “essential component”?  This is a term which lies out there without definition.

The next thing that is very clear is that no limit is placed in part i) of the clause as to the amount of these essential components of the spirit. In fact it is clear that the 2 1/2 percent limit is meant for part ii) of the clause only. This means than a virtually unlimited amount of flavoring, coloring, and/or blending materials are allowed as long as they are essential to the product. This term “essential component” is crucial to the discussion.

The second part of the clause also allows other things to be added.  Again harmless coloring, flavoring or blending materials, and this time caramel is specifically referenced, as are types of whiskey,  fruit juices, sugar, and infusion of oak chips when approved by the Administrator (or wine)  when not considered an “essential component”.

The important proviso here in part ii) is that “established trade usage” is the criteria which the Administrator must consider when granting approval.

It is also in part ii) of the clause that the reference to a limit of 2 ½ per cent of the volume is set to limit the amount of additives which can utilized without changing the labelling requirements of the class and type of spirit.

Now the impact of part i) and part ii) combined is much broader than even I anticipated. No limits are set on the amount of flavor and color and blending materials as long as they are considered ‘essential to the spirit. And when not considered essential but considered part of “established trade usage” they are allowed up to 2 ½ per cent without requiring them to be identified on the label.

What must be established to interpret this clause further are meaning/intentions of the two “red flag” terms “essential component” and ‘established trade usage”.

Let’s move on and see if the meanings are clarified or of anything further puts limits on the broad nature of this clause. The rest of section § 5.23 adds some clarification but not much:

(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.

Now this is useful as the use of artificial flavorings and colorings is being addressed in part i).  It is specific in that the product must not be rendered as an imitation. This means we have to go back to the imitation clause in 5.22 l to ascertain its meaning. The gist of these clauses in 5.22 l is not that artificial flavors cannot be used; rather it is that they must not be used to imitate a type and class of spirit. (IE you cannot add artificial rum flavor to a neutral spirit and call it rum. Nor can you add artificial almond flavor and call it almond rum) It can be argued that this clause specifically rejects the use of artificial flavors and colors altogether, but not completely, remember from § 5.2.2.2

In determining whether a flavor is artificial or imitation, recognition will be given to what is considered to be “good commercial practice” in the flavor manufacturing industry;

An important exclusion, namely that if it is considered good commercial practice to use a particular  flavors and/0r colors, then it is allowed. This would mean that flavor extracts are probably allowed.  It would be useful to have a more expert opinion on this.

Now part ii) is critical and I glossed over it at first not reading carefully enough. This part of the clause excludes everything except caramel, infusion of oak chips, and sugar. But if you read the clause properly it becomes evident that the clause part ii) specifically refers only to Brandy/Cognac.

I admit the entire clause is poorly written. However if Part ii) which excludes everything except caramel, oak chips and sugar did not refer only to Brandy/Cognac then it would make the clause part i) redundant.  The only literal interpretation that makes any sense is that part ii) must only refer to Brandy and Cognac.  This actually makes complete sense.  Part i) refers to all distilled spirits; part ii) refers only to Brandy/Cognac; and part iii) clearly refers only to neutral spirits or straight whiskey.

Next we have:

(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.

This clause may have specific implications for the new brands of aged white rums which are becoming popular.

(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.

This clause reminds us that in spite of the allowed additives under the good commercial practice clause and the essential component clause, the standard for identifying a flavored rum does not change.  If you are going to call your rum flavored, the identity of the flavor must correspond to the most predominant flavor.  I think this means you cannot call your rum an Almond Rum if Vanilla is the predominant flavor, even if the vanilla flavor need not be identified under clause  5.23 3.

5.23 3 cannot be used as a means to circumvent the labelling requirements of flavored rums.  It should be noted that if all flavors fall within the guidelines of 5.23 2 i) and ii)  then the rum need not be identified as flavored at all.  The naming of the rum as a ‘flavored rum’ at that point is an optional requirement. (Providing the spirit is 80 proof or more)

The next portion of the regulations pertinent to our discussion is:

Section§ 5.32 Mandatory label information.

§ 5.35   Class and type.

The relevant clause is § 5.35a :

a) Designation of product. The class and type of distilled spirits shall be stated in conformity with §5.22 if defined therein. In all other instances the product shall be designated in accordance with trade and consumer understanding thereof, or, if no such understanding exists, by a distinctive or fanciful name, and in either case (except as provided in paragraph (b)(2) of this section) followed by a truthful and adequate statement of composition. The word “cordial” or “liqueur” need not be stated in the case of cordials and liqueurs unless the appropriate TTB officer finds such word is necessary to clearly indicate that the product is a cordial or liqueur.

Basically this says that the previously scrutinized 5.22 applies with respect to how the rum must be labelled.

Now we move on to the clause with respect to coloring and flavoring and how they affect labelling.

§ 5.39   Presence of neutral spirits and coloring, flavoring, and blending materials.

The important clauses are:

(b) Coloring materials. The words “artificially colored” shall be stated on the label of any distilled spirits containing synthetic or natural materials which primarily contribute color, or when the label conveys the impression that the color is derived from a source other than the actual source, except that:

(1) If no coloring material other than natural flavoring material has been added, there may be stated in lieu of the words “artificially colored” a truthful and adequate statement of the source of the color;

(2) If no coloring material other than those certified as suitable for use in foods by the Food and Drug Administration has been added, there may be stated in lieu of the words “artificially colored,” the words “certified color added”; and

(3) If no coloring material other than caramel has been added, there may be stated in lieu of the words “artificially colored,” the words “colored with caramel,” or a substantially similar statement, but no such statement is required for the use of caramel in brandy, rum, or tequila, or in any type of whisky other than straight whisky.

Basically we have the situation established that if caramel is used to colour the product, the use of caramel need not be stated.  Caramel is undefined at this point of my research.  This clause seems to contradict § 5.23 2 which allowed harmless coloring to be added without changing the labelling requirements.  In the case of this contradiction the only interpretation that makes sense is that although you need not change your identification of the class and type of spirit if its additives fall within the parameters of § 5.23 2 you are still required to identify that the spirit has been colored if you are using a coloring agent besides caramel.

(b)   Treatment with wood. The words “colored and flavored with wood ___ (insert chips, slabs, etc., as appropriate)” shall be stated as a part of the class and type designation for whisky and brandy treated, in whole or in part, with wood through percolation, or otherwise, during distillation or storage, other than through contact with the oak container. Provided, that the above statement shall not apply to brandy treated with an infusion of oak chip in accordance with §5.23(a).

This clause is only important in that it provides clarification to 5.23a, in that it seems the addition of wood chips for infusions et cetera may only pertain to whisky and brandy.  This is not completely clear and it is not a burning issue to debate at this point. So I am leaving it be.

Now the next section is most interesting:

§ 5.40   Statements of age and percentage.

The relevant clause is:

(5) Optional age statements shall appear in the same form as required age statements.

(b) Statements of age for rum, brandy, and Tequila. Age may, but need not, be stated on labels of rums, brandies, and Tequila, except that an appropriate statement with respect to age shall appear on the brand label in case of brandy (other than immature brandies and fruit brandies which are not customarily stored in oak containers) not stored in oak containers for a period of at least 2 years. If age is stated, it shall be substantially as follows: “__ years old”; the blank to be filled in with the age of the youngest distilled spirits in the product.

Here the key part of the clause is the nature of the age statement which must indicate the youngest rum in the blend.  Here we have a clear problem with the current practice of solera age statements.

This is further clarified by:

(d)   Miscellaneous age representations.

(1) Age may be understated but shall not be overstated.

Intent here is clearly established.

And also:

(2) If any age, maturity, or similar representation is made relative to any distilled spirits (such representations for products enumerated in paragraph (d) of this section are prohibited), the age shall also be stated on all labels where such representation appears, and in a manner substantially as conspicuous as such representation: Provided. That the use of the word “old” or other word denoting age, as part of the brand name, shall not be deemed to be an age representation: And provided further, That the labels of whiskies and brandies (except immature brandies) not required to bear a statement of age, and rum and Tequila aged for not less than 4 years, may contain general inconspicuous age, maturity or similar representations without the label bearing an age statement.

My interpretation here is that if you are going to have a Solera type age statement on your bottle, it must be accompanied by an age statement in accordance with 5.40 5 b.

And there you have it, a step by step walk through of the regulations. I find the regulations appear to provide more latitude than I ever suspected.

I believe there has been identified a clear problem with the current use of misleading Solera age statements which identify the oldest rum in the lend rather than the youngest.

I have also established, I believe, that wide latitude is given for the inclusion of additives in rum providing the additives are i) considered to be essential to the production of rum; ii) allowable up to 2 1/2 percent if considered to be allowable under good trade practice, and iii) if by the standards of the food flavoring industry they are not considered imitations.

**Terms which I could find no specifics for were:

Caramel (when is spirit caramel intended and when is caramelized sugar intended)   Basically I need a definition of Caramel (that is backed by regulation) to adequately reinforce my argument.

Essential Component of rum for the purpose of adding flavor and color under 5.23.2i is undefined and not adequately understood.

Established Trade Usage for the purpose of adding flavor and color under 5.23.2ii is undefined and not adequately understood.

Good Commercial Practice for the purpose of using flavorings and colorings under 5.22j is undefined and not adequately understood.