The Wheat of Virgin Spaces

This year, after 95 years of prohibition, absinthe with less than 10ppm of thujone was finally authorised again for sale in the United States. The two key players behind this were the small family owned Kubler distillery in Switzerland - the same distillery, that two years earlier, had been instrumental in the re-legalization of absinthe in Switzerland itself - and a new start up in the US called Viridian Spirits. Who did what is a contentious subject, but it’s certainly undeniable that Kubler were the pioneers, starting their application as long ago as 2003.The informal account below of the entire 4 year process is based on an email interview with Robert Lehrman of Lehrman Beverage Law, PLLC, the law firm who assisted Kubler in their protracted negotiations with the TTB and the FDA.

When did the whole process begin?
Kubler of Switzerland set out to legalize quality absinthe in the US in 2003, a short time after working to change the Constitution in Switzerland to once again permit the legal manufacture and sale of absinthe there.

How did you as a lawyer get involved?
I began specializing in US alcohol beverage law in 1988. In the late 1990s I worked on Absente Liqueur; this is the closest to traditional absinthe that US law would allow at the time. In 2003 a Texas-based alcohol beverage importer asked me to seek approval for Kubler Absinthe. It was obvious that it would be a giant struggle, and I tried to convey this to the Texas importer (Dan Dotson) and Kubler. To Dan’s credit, he was undaunted. As a good Texan, he didn’t want to hear about all the impediments. A month later I sent a bill for the first few hours of work. Dan expressed dismay. In turn, I was surprised that Dan thought a few hours was too much, and so obviously we had some talking to do. We talked it through and came to an understanding that held up well over time; it gave me an incentive to spend as many hundreds or thousands of hours as may be necessary, so long as there was a good chance we would prevail eventually.

What were the initial steps taken? And how was the product formulated?
During 2004 we made good progress toward obtaining TTB approval for the traditional Kubler Absinthe formulation. A few weeks after submitting samples and documentation for analysis at TTB’s laboratory, and after just a few discussions, we were delighted to learn that TTB had confirmed that the product was safe, and that TTB would not require any changes to the formula. This was especially critical because Kubler was not willing to change the traditional formulation. Kubler Absinthe dates back to 1863 and has been made according to the same recipe by four generations of the Kubler family, in the Val-de-Travers. [ For an example of a pre-ban circa 1910 bottle of Kubler previously sold by Oxygenee Ltd, see our Vintage Absinthe section ] Based on my available information, this is more than two and a half years before TTB agreed to allow any other absinthe (with Artemisia absinthium, fennel, anise and thujone). But there was one serious problem. TTB would not allow it to be labeled as “absinthe.” TTB said it was an illegal drug term. On the other hand, Kubler was, as I think you can imagine, not interested in removing this term or calling it something like herbal liqueur.

So the actual use of the word “Absinthe” was a bigger problem than the thujone content?
Yes. We spent the next two years evaluating whether to use a term slightly different from absinthe, or take out the thujone, or to get litigators involved. The first two ideas would have been temporary measures only. But Kubler was not interested in selling a compromise product. Peter Karl (Kubler’s export manager) said “we will never call a horse a pig”.

You’d reached a kind of impasse. How did you move forward?
By 2007 the project had chewed up thousands of hours of my small law firm’s time. I decided that we had to find a way to win or lose and be done with it, or risk running my practice into the ground. I consulted with several big-time FDA experts and litigators. We had assembled a considerable budget, but many of the other lawyers advised that the odds were not good.Instead, we turned to the Swiss Embassy. We thought this might help because, based on the prevailing demonization, it seemed natural that TTB would have a fairly strong and negative view of those trying to “cash in” on this “dubious” stuff. The debonair Embassy person was very skilled at removing this impression. He was able to explain that absinthe is newly legal in Switzerland, Kubler is an old-line, respected, family business, and the Embassy would like to see this fine Swiss culinary product approved unless there is a good reason otherwise.Over several weeks, we pressed for a meeting in Washington. In February 2007 TTB agreed to meet with us. TTB had about 10 officials at the meeting, including a TTB attorney and Gracie Joy (in charge of spirits labels and formulas). On our side we had Peter Karl, Urs Broennimann from the Embassy, Dan Dotson, myself and my law clerk. We made our points for about two hours. TTB listened politely and said little, even when we raised questions. TTB did not agree or disagree when we explained that it was safe, and that it complied with all duly promulgated rules from TTB, FDA and Customs. Then, without fanfare, the TTB person in charge said “we will not allow absinthe to be larger than the brand name.” Wow. With that we had almost everything we needed. We spent the next 45 minutes trying to ensure that we heard correctly, and confirming the details. Peter and I rushed back to my office and got on the phone with the graphic designer. We implemented several TTB recommendations (they were mostly peripheral) and re-submitted the label the same day. TTB moved slowly and cautiously. They didn’t like the bold print on the back label (absinthe in bold). They said 33.8 fluid ounces should be 33.82. Each little back and forth took a few weeks. Near the end, TTB raised concerns about the thujone. I suggested that TTB should qualify the label approval by requiring that the “finished beverage must be ‘thujone free’ as per 21 CFR 172.510.” We got label approval a few days later. It took extra time because Kubler refused to compromise anything beyond font sizes. Various press accounts and other evidence suggest that other brands may have made critical changes, such as lowering their thujone level or in the case of Absinto, actually avoiding the term “absinthe”. Peter Karl’s instructions to me were that “we will not compromise the integrity of authentic Swiss absinthe.”From the point of our meeting and after, TTB was incredibly open-minded about this topic, and gave us lots of time and attention. TTB gave us all the assurances we needed, in the meeting, so that Kubler could go forward confidently and ramp up production, for the US market. TTB approved another brand within a few days after Kubler’s meeting at TTB. As soon as the policy shift became public, in this manner, we accelerated our efforts to get formal, public, label approval. Three years after the initial submission, TTB approved the Kubler label.

What do you think were the principle factors that persuaded the TTB to change its view on legalization?
In addition to showing it’s safe and compliant, one of our main arguments was that TTB’s continued refusal to allow Kubler in no way means absinthe will not come in. It only ensures lawlessness (untaxed, unregulated absinthe with no formula approval, no label approval and no government warning). Google made this very easy to prove, showing thousands of illicit sources. TTB seemed concerned (a bit surprised) and certainly did not minimize this issue. We asked what they have been doing to stop the flow of illicit absinthe. They had very little to say. We suggested that there may be no better way to foster compliance than to cooperate with the people like Kubler who are trying to play by the rules.A few days later, TTB said they had checked with FDA and it may be better for us to wait, until FDA decides how to handle this. Fully aware of the FDA situation, we explained that we don’t want to wait any more and we are confident Kubler complies with all the relevant laws and regulations. A few days after that, we cleared the way with US Customs. At no point did TTB suggest (or demonstrate) that Kubler conflicted with the rules or regulations. That is, it was not necessary to change any laws or regulations or even interpretations. It was only necessary to change TTB’s mindset. For decades “everybody knew” (wrongly) it was bad, illegal stuff - without looking at it in a fair, clear-headed manner. It strikes me as a cautionary note about governmental and human institutions in general (capable of massive self-deception and illogic). At one point TTB summarily urged us to “delete all references to absinthe because it’s a drug term (no matter how spelled).”There were very few Eureka moments. Instead it was hundreds of emails, dozens of phone calls, a few meetings – over the span of four years and thousands of hours. Also, it was knowing deep down that it’s all a huge misunderstanding, a historical accident not supported by facts or logic or law.I feel strongly that Kubler did most of the heavy lifting – in the US and in Switzerland – to put an end to the nonsense. I think they deserve credit for doing something important, and for paving the way for all the other brands sure to follow. It’s possible that several other companies helped. Some are saying they spent a lot of money lobbying FDA in late 2006, but the currently available information shows that FDA had no real qualms about this after 2004. Also, I do not understand why there should be fanfare about the realization that pre-ban absinthe had only a low level of thujone. Kubler knew this and took it as a given since minute one of our project; it was never an issue. FDA and TTB never said otherwise. It may be important as a matter of history but has no bearing on the legal situation in the US. A discovery that pre-ban absinthe had very little thujone would have almost nothing to do with TTB/FDA relaxing the ban.

So thujone itself was a surprisingly minor issue in the whole process?
There was almost no discussion about thujone (among TTB and Kubler). The FDA rule says thujone can’t be over 10 ppm. This was obvious since the initial inquiries, going back at least 10 years. Back in 2003, Kubler said fine, it’s not a problem because it’s well within the normal range (as subsequently shown by Lachenmeier, yourself and others).At many stages, TTB was seemingly more concerned about the “wicked” term “absinthe” as compared to concerns about thujone. As far back as 2004 we pressed TTB to test the thujone and all other aspects of Kubler and confirm that all is within federal specifications; there was very little discussion about it thereafter.Also, there was no real need to have a discussion about the thujone because TTB has its own laboratory, about 15 miles outside Washington, with about a dozen beverage and flavor chemists. They were quite capable of figuring out, for themselves, that the product at issue was within all pertinent limits.Throughout the four years, we knew we could probably bring absinthe to the US at almost any point, if we made enough compromises. But Kubler preferred to be patient for just a few more years, after already waiting more than 90 years, and it was a thrill see Kubler Swiss Absinthe come back to life, in the US, without compromise. The new importer (Altamar Brands, LLC with a lot of industry heavyweights) is on course to roll it out nationwide.

More information here, including supporting documents and the most recent TTB guidelines on absinthe.

I’ve had a reply to my previous post below on this blog. Since this is an interesting debate, here’s my response in turn:

Fabulous Fox says:
“Why is this an Either/or situation? Absinthe’s has had a long history of being both gentleman and murderer–from utilizing the powers of Copper Sulfate to the taking advantage of the natural. Considering there were distillers (whether jobbing or not) producing absinthe outside of the “Franco-Suisse” region during the Belle Epoque disqualifies the “made by the Franco-Suisse producer” exclusion.”

I don’t think fine absinthe should only be, or can only be made in France or Switzerland. I think producers who expressly claim the Franco-Swiss heritage in their marketing (by references to age-old Swiss recipes, the glories of the Belle Epoque etc), should make their absinthe in a Franco-Swiss style.
I would have thought this would be hard to disagree with.

Fabulous Fox says:
“While I agree with you, it all depends on where you start absinthe’s pedigree. We could take the medicinal uses of distilled wormwood for the base and progress. Anise got integrated sometime later and (theoretical) a split happens. What we end up with is absinthe the drink and absinthe the (still) medicine. Absinthe the drink then gets softened down, sweetened, subtled, etc. while absinthe the herbal elixir maintains its crazy bitterness, etc.”

The plain meaning of the word “absinthe” as applied to an aperitif, is the drink formulated at the end of the 18th century, and commercialised in France and Switzerland during the 19th. This drink contained wormwood, green anise, fennel and all or most of the following: hyssop, melissa, petite absinthe. There was no parallel 19th century French tradition of drinking wormwood bitters. There were of course various wormwood elixirs - drunk as medicine, not for pleasure - since ancient times. If Czech-style producers are basing their products on these, quite simply they should say so. Again, I would have thought this is hard to disagree with.

Fabulous Fox says:
“Another read of KOSG’s selling line states “Absinthe King Gold is from an original Swiss absinthe recipe and is free of colourings and preservatives.” Is there such a recipe? Probably not but to give them the benefit of the doubt…what if? For the same reasons others will not disclose their propietary information, we can’t expect them to disclose their “secret Swiss recipe”–history be dammed at this point.”

There’s as much chance of finding an ancient Swiss recipe for KOSG, as there is for finding an ancient Swiss recipe for Red Bull. Their product bears no relation to any known vintage absinthe, or to any known vintage absinthe recipe. The onus is thus surely on them to provide some - even indirect - substantiation for their claims.

Fabulous Fox says:
“They needed a site designed. Perhaps the distiller used Roret? Who knows? But ultimately they used that as a visual to show history, lineage, and absinthe, in my opinion (and because I’ve been jaded by the biz) it’s neither here nor there–it’s an “emotional picture”.

I agree. It is likely, as you say, just an “emotional picture”. But it conveys a false history and false lineage then, doesn’t it?

Fabulous Fox says:
“Could it have used a natural dye? Sure, why not? The utilization of dye is still in keeping with the old stuff (just be glad it’s not copper sulfate, I suppose) and should still make the “authentic” list.”

The use of dye is in keeping with the manufacture of low quality 19th century absinthe, as expressly stated in Duplais and all other similar distilling guides. All high quality absinthes were coloured naturally, almost always with some combination of petite absinthe, hyssop and melissa. Century claims to be a high quality product, yet isn’t, it appears, coloured like this. The point of this natural colouring of course was to add flavour and aroma, not just chlorophyll. If you colour with dye, by definition you don’t get this flavour and aroma.

Fabulous Fox says:
“The mean thujone level of all historic absinthe (I say historic because vintage also denotes quality) is probably medium level but then there are also the extremes plus all of the bottles that haven’t gotten around to being tested because they no longer exist, hence a tad bit of uncertainty is introduced.”

Some of the bottles that don’t exist any longer and thus haven’t been tested may have kryptonite put there by alien spaceships, and others that don’t exist any longer and thus haven’t been tested may contain the perfectly preserved tiny foetuses of unborn babies. Anything is possible. But in the meantime, those of us in the reality-based community will continue to go on the GC/MS analyses of major brands like Pernod, Edouard Pernod and Berger, which collectively accounted for the vast bulk of the 19th century absinthe market, and which, as I said, don’t assay anywhere near 100mg/l of thujone.

Fabulous Fox says:
“I do like your ideas on classifying styles. This, however, does not keep them from producing a more “traditional” absinthe and saying “hey, this is the same type of stuff that the French drank during the Belle Epoque”. A recipe is a recipe regardless of where its cooked up, unfortunately, it’s already half judged and completely suspicious because it has the misfortune of being created in the Czech Republic.”

No disagreement from me. Of course a producer in the Czech Republic or anywhere else who wants to make a Franco-Swiss style absinthe should do so. It’s not about location, it’s about making a high quality product, and marketing it truthfully. The use of dye, and the addition of industrial oils like thuja or cedarwood oil are not compatible with the highest quality - surely this is unarguable? And if your product doesn’t look, taste or smell remotely like Franco-Swiss style absinthe, surely claiming that it’s the inheritor of the Belle Epoque tradition is dishonest?

As I said. the Czech producers have this wonderful bitters tradition right on their doorstep. I’ve had many superbly complex, naturally coloured Czech bitters. Why not develop the category of Bohemian Absinth as an extension of this tradition?

“Czech absinth” has become a shorthand for inauthentic and inaccurately marketed absinthes not because of some bizarre anti-Czech racism as some blogs have postulated, but because most (not all, but most) Czech absinthes ARE inauthentic and dishonestly marketed. “Czech beer” by way of contrast is a byword for quality around the world - because Czech beers ARE wonderful.

Even having said this, one might legitimately say “why bother?” Each to his own. If you don’t like Czech-style absinth, don’t drink it. If you don’t like the advertising copy, don’t read it. Why does it matter to you?

Here’s why: because Czech-style absinthe producers (with a few honourable exceptions) don’t market their products on their own merits, but do so by trying to usurp the historical Franco-Swiss tradition.

This is what upsets French and Swiss producers - because only one of the parties can be right: if an artificially coloured, thuja oil boosted, low anise, bitter tasting product is an authentic inheritor of the vintage tradition, then the naturally coloured, low to medium thujone, high anise, only very mildly bitter product made by the Franco-Suisse producer can’t ALSO be authentic. One of these producers isn’t telling the truth. The Franco-Suisse side is able to back up its case with countless original documents, every major 19th century French distilling text, and the fact that all major brands of pre-ban vintage absinthe known in surviving bottles are - as far as can be judged by taste and aroma - made in precisely this Franco-Swiss style. The Czech-style side can produce no similar evidence, no examples of 19th century absinthe that taste anything like Bairnsfather Bitter or KOSG for example. Nor are there any surviving Franco-Swiss recipes for this style of absinthe.

A good example of what I mean can be seen in the website of the Century 100 absinthe prominently advertised on several of the pro-Czech websites. Their website claims: “Century is made in limited batches by a select group of skilled craftsmen, and each batch is created strictly in accordance with an original Belle Époque recipe; nothing is added, and nothing is taken out.” Additionally a picture of the Roret distillation guide is shown, with the text “Each bottle of Century is hand-crafted according to a traditional recipe. Century Absinthe contains 100mg of thujone, making it as strong as the mind-bending absinthes of the Belle Époque era.”

Well, almost all of this is, in my opinion, demonstrably untrue. An absinthe coloured according to the classical principles outlined in the Roret guide, simply won’t end up the dark green colour of the Century bottle. So Century is either coloured by an entirely non-standard herb (very unlikely), or it’s likely coloured with natural food dye. The website is careful to say: “No artificial dyes are used in the making of this translucent green liquor – Century is 100% natural and only herbs of exceptional quality are used.” Note that this doesn’t preclude the use of a NATURAL dye, only an artificial one. Further, no absinthe made according to the recipes in the Roret book will end up with a thujone level of consistently 100mg or higher. If Century does indeed contain that claimed level of thujone, it’s almost certainly achieved by adding thuja or cedarwood wood leaf oil, something never even contemplated by any Belle Epoque producer. Lastly, no vintage absinthe ever tested has assayed anywhere near 100mg/l of thujone, and it’s been fairly conclusively demonstrated that thujone in the 100mg/l range is not only not “mind bending”, but barely has any observable effect at all. So in short the claims made for Century’s fidelity to the Belle Epoque tradition don’t, as far as I can see, stand up to scrutiny, nor do the claims made by Century as to the nature of Belle Epoque absinthe.

The irony of this all is that the Czech spirit industry is inheritor of a long and proud tradition of making superb herbal bitters. I’m personally a great afficianado of these, and as a judge in the bitters category at the International Wine and Spirit Competion have helped award gold and silver medals to many Czech bitters. The question that baffles me, is why doesn’t the Czech absinthe industry co-opt THIS tradition - a genuine one,? Why attempt to piggyback on the Franco-Swiss absinthe tradiiton, an effort which is surely ultimately bound to fail? Why not call the product “Bohemian Absinth” and market it as a category all its own, a kind of wormwood bitters? Use the finest quality local herbs and huge amounts of locally grown wormwood (but no industrial additives like thuja oil). The bitters taste profile is hugely attractive to new consumers (witness the success of a drink like Jagermeister, which just on its own vastly outsells the entire absinthe category). In the modern world, outside countries like France that have a traditional taste for it, the flavour of anise is a positive liability. Most new consumers don’t like it, at least not at first. It seems to me that the Czech absinthe industry is squandering an historic opportunity to stake out their own ground with a flavour profile that’s in fact more generally appealing than the anise rich taste of traditionally made absinthe. There are many examples of this in other liquor categories - Irish (Jamesons) and Tennesse (Jack Daniels) whiskeys are both hugely successful in their own right, without for one second trying to co-opt the Scotch whisky tradition.

Surely this is the way forward for Czech absinthe?