The Spice Tree Issue

Here's a story I promised you back in March of this year. Where does the time go?
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In October of 2005 I wrote about a new release from Compass Box called The Spice Tree. The Spice Tree is a vatting of Clynelish, Glen Elgin, Teaninich and Dailuaine, all of which have been aged at least 10 years. I described it as:

A honey gold... I personally detect quite a bit of vanilla in the nose, mixed in nicely with the spiced fruit. Spice is an excellent word to describe the flavor of this whisky, but it doesn't overwhelm the strong malt. And I concur that the finish is VERY long, very spicy, and very pleasant.

The method by which John Glaser evoked these spicy flavors from those four Highland malts is the very reason that the Spice Tree is currently not produced. I talked about this in "The Downfall of Civilization":

Many people wrongfully assume that The Spice Tree is finished in new Oak barrels. Actually, Compass Box uses an "inner-stave" method, in which flat staves of new, but seasoned, (ed. air-dried and toasted) sessile wood are secured inside the standard cask.

This may not seem like a big deal to the average person, but is was a big deal to the Scotch Whisky Association (SWA). David Williamson, frequent The Scotch Blog contributor tells me:

Dear Kevin,
You asked about the SWA's position on The Spice Tree brand and the use of inner staves in casks.

Clear legal advice received by the SWA indicates that the use of inner staves in casks for the maturation or finishing of Scotch Whisky is not permissible. As you may be aware, the production of Scotch Whisky is controlled, not only by The Scotch Whisky Act and Order, but also by the EU Spirit Drinks Regulation (No. 1576/89), which governs production of all whiskies in the EU. Although these laws set out a fairly detailed process by which Scotch Whisky must be produced, they do not cover every possible practice.

Senior Counsel’s advice to The SWA, confirmed by a judgement of the English High Court, is that, where a particular practice is neither specifically permitted nor specifically forbidden, its legality is to be determined by reference to traditional practice. This is to protect spirits with a well established reputation, such as Scotch Whisky, against the adoption of practices which may change the character of the product.

The SWA is always happy to discuss new products with members and non-members alike. We have welcomed the opportunity to have useful discussions with the makers of The Spice Tree in recent months and have outlined the legal position to them. The company has agreed not to use modified casks to produce The Spice Tree in the future, after the exhaustion of its current stocks.

I hope this helps to clarify the position.
Best regards
David

On a superficial level, the desire to protect the Whisky industry through application of traditional practices as the rule seems like an appropriate place to start. However, in my humble opinion, the rigid adherence to what may be considered to be a traditionalist view may have the un-intended effect of squashing innovation.

I asked:

Thanks David,

To this point I was under the impression that the SWA had an issue with the use of "new wood" which I simply did not understand based on precedent, and the existence of new products like Balvenie New Wood.

I now understand the issue is with the inner stave method that John is employing.
If Compass Box were to age/finish the stuff in casks made of new sessile oak, I can assume that the SWA would not have an issue with that?

David's reply:

Kevin,
The advice from Senior Counsel is that there is no bar to using new oak casks for the maturation of Scotch Whisky.
Best regards,
David

I've had several discussions with John Glaser on this topic. Here's an amalgam of what we've discussed.

Kevin Erskine: If new wood is not illegal, it begs the question: Why not just use casks of new, toasted sessile oak?

John Glaser: What coopers are able to do is take flat staves of the highest quality oak – not intended to be formed into a cask - and toast them in ways you cannot toast a barrel. You get more compelling flavors as you can toast for longer periods.

You can only toast a barrel for 1 hour - (1hour & 15 minutes max) before you start to compromise the structural integrity of the cask. To use a coffee analogy – imagine you could only toast a coffee bean to a medium roast - that’s how long how you could toast a cask - however, you can toast individual staves to a French roast or an Espresso roast if you like - and that’s where staves can get really interesting.

This method is used by some of the most revered wine makers in the world. This is where the wine world is going – I’d loathe to see the whisky world left behind.

KE: Why not replace the heads (ed. - cask ends) with the same toasted sessile oak staves?

JG: If you toasted a cask head to the same extent as we do for our inner staves, you would again have a problem with structural integrity and leakage.

Let's take a step back and talk about what is at the heart of the issue. Please remember, the SWA’a position is not a cut and dried reading of the law, but instead an interpretation of the existing laws – The law simply states that whisky must be matured in wooden casks made of oak for a period of not less than 3 years. John has an understandably different interpretation of the law - since the use of staves is not precluded, it should be allowed.

The view of what is considered to be "traditional" is not so cut and dried either. We are not talking about conforming to the traditional whisky process circa 1881 - The SWA put a stake in the ground - in 1989 (the year the European Union Spirit Drinks regulations, which David mentioned above, became law)* - as far as the SWA is concerned in regards to whisky making, time stopped and practices before that year may be deemed as traditional, whereas practices introduced afterward are seen as non-traditional.

As a result, if John were able to produce evidence stating that the inner-stave method had been utilized at any time before 1989, then the SWA would be less likely to dispute the practice.

JG: Our issue is with the interpretation of the law – which I feel is narrow and chokes off innovation - and chokes off the ability of Scotch whisky producers to utilize new developments in traditional practice. It’s simple as that.

KE: Oak chips tossed in a cask might be frowned upon, simply because it doesn’t sound very sophisticated – but you are not doing that – I’m failing to understand why – aside from tradition – there is an issue with the installation of high quality staves within a cask...

JG: Let me first say that I respect the SWA and I do believe they have an important role to play in the industry.  But I simply disagree with them on the issue around THE SPICE TREE.  A key thing to bear in mind here is that the SWA told me when they look at these types of things, "quality is completely irrelevant."  I have a big problem with that.  I feel that if the industry's chief trade organization is to take a fully considered view on whether or not a practice is going to help or hurt the integrity and quality perception of Scotch whisky (which is effectively why the laws in question exist in the first place), they simply must look at the quality implications of the practice.  To do otherwise seems to me to be counterproductive.

The SWA is saying that because inner staves have not been used before in Scotch whisky, they can't be used now, no matter how good the resultant whisky is.  I disagree with the thinking process that gets them to this conclusion.

I will say that having worked with lawyers for a number of years, I am attuned to legal speak - my perception of the comment from the SWA lawyer is not that the lawyer completely disregards quality in the whisky production process, but instead that the presence or absence of quality in a particular method has no bearing upon the legality of the matter. But I can understand how the statement itself might irk a perfectionist like John.

The bottom line is that John has been asked to stop producing The Spice Tree. This statement from John is from the Compass Box website:

Despite the success of our first two bottlings of “The Spice Tree” among devoted whisky drinkers around the world, the Scotch Whisky Association (known as the SWA in the Scotch whisky trade) has asked us to discontinue production of this product.

The issue revolves around the SWA’s interpretation of the law regarding traditional practice in the production of spirits in European Union countries. While we disagree with their interpretation of the law, we have, nonetheless, decided to stop production of “The Spice Tree” while we continue to negotiate.

Our inaugural batch of just over 4,000 bottles was sold out in five weeks (we thought it would last five months!) And our second batch, released in April 2006 was entirely pre-sold to our importers before we bottled it!

However, the SWA did not like it. I tried to explain to them that we had studied the law and believed that what we were doing was well within it, not to mention a positive quality step forward for the industry. “Quality,” I was told by the SWA, “is completely irrelevant.” They had their interpretation of the law, which held that what we were doing was not “traditional”, so that was the end of the story, as far as they were concerned.

Not much we could do at that point, with a gun, (figuratively speaking) pointed at our head.

So we will continue to negotiate and hopefully one day we will bring back “The Spice Tree.”

But don’t worry! The good news is we’ve got lots of other whiskies in development. We have no shortage of ideas. And no diminished passion for creating extraordinary and delicious whiskies. Stay tuned.

Fortunately for me, I've tried The Spice Tree and I own (and hoard) one of the inaugural bottles.

What do you think about all this?

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*While doing research for this story I came across this (Dated December 2005) on the European Union web site (emphasis is mine):

1.3.115. Proposal for a European Parliament and Council regulation on the definition, description, presentation and labelling of spirit drinks.

Regulation to be repealed: Council Regulation (EEC) No 1576/89 laying down general rules on the definition, description and presentation of spirit drinks (OJ L 160, 12.6.1989; Bull. 5-1989, point 2.1.185), as last amended by the 2003 Act of Accession

Adopted by the Commission on 15 December. The proposal is intended to improve the applicability, legibility and clarity of existing legislation on spirit drinks. The proposed regulation would thus merge the two existing regulations on spirit drinks into one. The proposal introduces a specific policy on spirit drinks, based on the three categories of products covered by the existing definitions. The definitions of spirit drinks continue to comply with traditional quality methods, but the new regulation would bring these up to date where the previous definitions were lacking or insufficient, or where technological developments made it possible to improve them. The proposed regulation would apply to all spirit drinks sold on the Community market, whether produced inside or outside the Community. It would introduce some flexibility by transferring the power to amend the annexes to the Commission, which would be assisted for that purpose by the Management Committee on Spirit Drinks. The proposal takes account of the intellectual property rights agreement (TRIPS) and the general agreement on tariffs and trade, which is an integral part of the agreement establishing the World Trade Organisation (WTO). It lays down rules on the protection of geographical indications for spirit drinks.

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Full Disclosure: I truly appreciate and support the work that the SWA does to protect Scotch whisky around the world, and I appreciate David Williamson's consistent and excellent input here. I am a fan of much (if not all) of the positions taken by the SWA.
Furthermore, I know, like and admire John Glaser. I have been his guest on several occassions and enjoyed his hospitality. I was a big fan of the Compass Box Line before I knew who John Glaser was and I continue to be a huge supporter of John and the team at Compass Box.

Comments

[MacFhearghais]

Theoretically, can they produce it and simply call it something other than Scotch Whisky?

[Patrick]

Kevin, I'm pleased to tell you and your readers that THE SPICE TREE will be availible for sale in the US in August. Morrellwine.com is already preselling, as is Astorwines.com. Both of these retailers ship via UPS. I don't think I need to tell you that supply is short so stock up. Suggested retail is $79.99. And as always great job K.

[Julian]

Would it be feasible to use a custom barrel with thicker walls? Might this allow the innter wall to be toasted to a greater degree while the outer wall provided structural integrity?
Might the SWA see this as more traditional than inner staves?

[Robert Bowles]

I, too, am sad to see The Spice Tree go out of production because the SWA has judged John's innovative production methods non-traditional. The reality is The Spice Tree is a complex and tasty dram. If John had called it anything ("A Really Chewy Blended Distilled Spirit"?) but Vatted Malt Scotch Whisky, I could continue to enjoy this lovely stuff. However, I shall have to be content to having hoarded what may be the last six bottles of The Spice Tree in Santa Cruz County, California.