My wife and I were eating crabs on the Eastern Shore of Maryland this past weekend and the conversation turned to foods that were — like crabs are to Maryland — inextricably linked with a particular state. We considered lobster (Maine), crawfish (Louisiana), barbecue brisket (Texas), and the like. Upon further thought on the topic later, I expanded the exercise to include beverages as well as food and immediately thought of Bourbon whiskey, of which approximately 95% is made in the state of Kentucky. There are federal and state laws, furthermore, that govern what can be called “Bourbon Whiskey” or “Kentucky Whiskey.”
Kentucky is apparently not the only state seeking to protect its brand when it comes to whiskey, as evidenced by recent legal battles over what can be considered “Tennessee Whiskey.” The main industry combatants here are Kentucky-based Brown-Forman Group, which owns the Jack Daniel’s brand, and British liquor giant Diageo, which sells “Tennessee whiskey” under the smaller George Dickel label. The primary point of contention is that Diageo, though it distills its George Dickel whiskey in Tennessee, ages at least some of it in barrels across the border in Kentucky. Under a newly enacted Tennessee law, that Dickel is not aged in Tennessee would foreclose it from being marketed as “Tennessee whiskey.” For its part, Jack Daniel’s is both distilled and aged within Tennessee’s borders and supported the enactment of the law, arguing it was consistent with other laws around the world that protect regional designations of alcoholic beverages — with the protection of the term “Champagne” for sparkling wines made in that region of France being perhaps the most famous.
Diageo’s efforts to rewrite the law to be less restrictive failed in the 2014 Tennessee legislative session. Diageo has also challenged the law in the law in federal court, arguing it violated the U.S. Constitution’s Commerce Clause, which has been consistently interpreted to prohibit state laws that unduly inhibit or restrict the free flow of commerce between the states. In another twist, state regulators recently, and somewhat abruptly, dropped their investigation of Diageo over whether it violated the storage law as it related to its Dickel Tennessee whiskey
Lawmakers plan to review the issue this summer, and the issue of what can be called “Tennessee Whiskey” will likely be back before the Tennessee legislature in 2015.