Whisky is not the same product as Vodka. Why? Because it says so on the label? Because we know it is not the same? Since it is obvious?

Some definitions we think we know by heart are described by Law. Why? Because there was apparently a need to give a definition in a Law about some topic. There are laws that govern the layout of a train for instance. This happens to be my field of expertise since I design and homologate train as my profession. This is also why I know my way around legal definitions given by the European Union.

European Flag, by Rock Cohen
European Flag, by Rock Cohen

In the documents available on the European Union Legal pages a “Regulation” is given for “Spirits”, which included Whisky, Whiskey and Scotch Whisky. Here is the part where you go “Ah!”.

In the full text this “Spirits Regulation” is it is called:

Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89

Link: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008R0110&from=en

In the “Spirit Regulation” the definition of Whisky or Whiskey is given:

Whisky or Whiskey

(a) Whisky or whiskey is a spirit drink produced exclusively by:

(i)  distillation of a mash made from malted cereals with or without whole grains of other cereals, which has been:

—  saccharified by the diastase of the malt contained therein, with or without other natural enzymes,

—  fermented by the action of yeast;

(ii)  one or more distillations at less than 94,8 % vol., so that the distillate has an aroma and taste derived from the raw materials used,

(iii)  maturation of the final distillate for at least three years in wooden casks not exceeding 700 litres capacity.

The final distillate, to which only water and plain caramel (for colouring) may be added, retains its colour, aroma and taste derived from the production process referred to in points (i), (ii) and (iii).

(b) The minimum alcoholic strength by volume of whisky or whiskey shall be 40 %.

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

(d) Whisky or whiskey shall not be sweetened or flavoured, nor contain any additives other than plain caramel used for colouring.

(5)  Addition of alcohol

Addition of alcohol means the addition of ethyl alcohol of agricultural origin and/or distillates of agricultural origin to a spirit drink.

(6)  Addition of water

In the preparation of spirit drinks, the addition of water shall be authorised, provided that the quality of the water is in conformity with Council Directive 80/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters (2) and Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (3), and that the water added does not change the nature of the product.

This water may be distilled, demineralised, permuted or softened.

The “Spirit Regulation” further protects a number of regional names

  • Scotch Whisky, United Kingdom (Scotland)
  • Irish Whiskey/Uisce Beatha Eireannach/Irish Whisky (1), Ireland
  • Whisky español, Spain
  • Whisky breton/Whisky de Bretagne, France
  • Whisky alsacien/Whisky d’Alsace, France

(1) The geographical indication Irish Whiskey/Uisce Beatha Eireannach/Irish Whisky covers whisky/whiskey produced in Ireland and Northern Ireland

The Interesting part of these regulations are the mention of just “wood”, not Oak wood. This would mean that any wood could, by this definition, be used and producers would be able to legally call it Whisky.

There are no extra constraining regulation given for the regional produce such as Scotch Whisky.

The “Spirit Regulation” gives information how the regulation should be implemented and how it is intended.

Article “1” describes the regulations this regulation replaces.

Article “2” details the intent of the lawmakers. This is where the European Commission gives out how the Regulation is intended and this intention is almost 180 degrees opposite to the way the Scottish Whisky Association thinks and acts.

(2)  The spirit drinks sector is important for consumers, producers and the agricultural sector in the Community. The measures applicable to the spirit drinks sector should contribute to the attainment of a high level of consumer protection, the prevention of deceptive practices and the attainment of market transparency and fair competition. By doing so, the measures should safeguard the reputation which Community spirit drinks have achieved in the Community and on the world market by continuing to take into account the traditional practices used in the production of spirit drinks as well as increased demand for consumer protection and information. Technological innovation should also be taken into account in the categories where such innovation serves to improve quality, without affecting the traditional character of the spirit drinks concerned.

This latest line in article 2 is particularly interesting when incorporating maturation techniques that are improving the quality of the product. Meaning, it is the intention of lawmakers to encourage innovation that increases quality. Improving Quality is a higher goal then keeping traditions. Producers are further encouraged to provide information in a transparent way to better inform the customer about the quality of the product.

Why is it that the Scottish rules for produce of whisky can be stricter than the regulations set out in this Spirit Regulation? It is because this regulation allows this in 11 and article 6 of chapter 1.

(11)  In accordance with the Treaty, in applying a quality policy and in order to allow a high level of quality of spirit drinks and diversity in the sector, Member States should be able to adopt rules stricter than those laid down in this Regulation on the production, description, presentation and labelling of spirit drinks produced in their own territory.

Article 6 of chapter 1 reads:

Member States’ legislation

1. In applying a quality policy for spirit drinks which are produced on their own territory and in particular for geographical indications registered in Annex III or for the establishment of new geographical indications, Member States may lay down rules stricter than those in Annex II on production, description, presentation and labelling in so far as they are compatible with Community law.

2. Member States shall not prohibit or restrict the import, sale or consumption of spirit drinks which comply with this Regulation.

Any legal scholar person will know that “articles” of a Regulation are always written in the order of importance. Meaning Article 2 is more important than article 11.  This would mean that even though article 11 allows for stricter “rules” to be “added” it is not intended to “override” the stipulations of articles 1 to 10. They have to be “compatible”.

Lots me? In short, The (United Kingdom) Scottish lawmakers may ADD rules, but no OVERRIDE rules.

How is this interesting for innovators like Compass Box. This is interesting since this mean they can produce, by law, whisky in casks containing inner staves or whatever as long as is it wood.

The information on the labels is also regulated in 10 and article 12 of chapter 1. Here the Spirit Regulation gives rules, but also options to deviate. These are called “Derogations”.

These derogations for instance ensure that exported spirits are labeled according to the rules of the importing nations. For internal market the rules of the content of the label state:

(10)  While it is important to ensure that in general the maturation period or age specifies only the youngest alcoholic component, this Regulation should allow for a derogation to take account of traditional ageing processes regulated by the Member States.

Article 12 of chapter 1 reads:

Specific rules concerning the description, presentation and labelling of spirit drinks

1. Where the description, presentation or labelling of a spirit drink indicates the raw material used to produce the ethyl alcohol of agricultural origin, each agricultural alcohol used shall be mentioned in descending order of quantity used.

2. The description, presentation or labelling of a spirit drink may be supplemented by the term ‘blend’, ‘blending’ or ‘blended’ only where the spirit drink has undergone blending, as defined in Annex I(7).

3. Without prejudice to any derogation adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3), a maturation period or age may only be specified in the description, presentation or labelling of a spirit drink where it refers to the youngest alcoholic component and provided that the spirit drink was aged under revenue supervision or supervision affording equivalent guarantees.

This is where the text of article 2 starts to be confusing when compared to Article 10 and Article 12 of chapter 1. Why would you limit the information on the label informing customers about the content? This regulation does not give any insight why only the youngest content may be put on the label.

The Directive mentions in this regulation for labeling rules has been repealed by:

Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 Text with EEA relevance

Alas this Regulation does not give further insights in why only the youngest content of a spirit may be on the label. Since The Regulation for spirits is now eight years old I am sure it will be repealed and updated with the intentions written down in 1169/2011.

The % of alcohol that should be indicated is regulated by Regulation 1169/2011 in an Annex XII.

So by law the alcoholic content should be described with 1 decimal and a maximum deviation (error) of 0,3%.

Was this blog a tad too complicated? Let me know 😉