My personal suspicion, having worked many years for a well-known consumer products manufacturer, is that industry standards and the law now make it impossible or illegal to do so.
I'm sure I'm missing something, but I'm not sure what you think might not be legal. But "flying under the radar" isn't a realistic thing for any legal distillery. Once caught, there will be heavy fines, or the business will be shut down.
Excellently stated points about the mechanics of whiskey distilling, but yes, I believe you did "miss something" -- or more likely it was I who didn't make myself clear enough. The regulations and industry standards to which I alluded would be more procedural. In the pharmaceuticals and food-handling industry, the catch-phrase is GMP -- Good Manufacturing Practices -- and include both industry guidelines and, in the United States, federal laws (Section 501(B) Food, Drug, and Cosmetic Act). Although we may think of whiskey as a food, both the Internal Revenue Service and the FDA consider beverage alcohol to be a medicine (that's what got us through Prohibition, after all). The law is not just window-dressing, either; it allows for courts to rule a product "adulterated" even if there is no specific regulatory requirement that was violated, if the process was not performed according to established industry standards (i.e., the GMP list). And that list is a long one. Larger companies have entire legal departments dedicated to ensuring their compliance. But to give you an idea, here are a couple of the FDA requirements which apply to manufacturers of Botox and bourbon alike:*** Manufacturing processes are clearly defined and controlled. All critical processes are validated to ensure consistency and compliance with specifications.
In other words, processes which had always depended upon the distiller's expertise and years of training were replaced with scripted production manuals written to be understood (and approved) by QA personnel and regulatory authorities.
*** Manufacturing processes are controlled, and any changes to the process are evaluated. Changes that have an impact on the quality of the drug are validated as necessary.
In other words, while the IRS always demanded a full explanation for even a 0.5% deviation from stated proof, under GMP such attention must be paid to EVERY ingredient -- thus requiring a degree of consistancy that is antithetical to the "normal" way of selecting-by-deviation from among barrels of varying qualities. The likes of Jimmy Russell or Booker Noe wouldn't be allowed to touch the distillery controls today, except under strict supervision. The nuances that were possible using the talents of these gentlemen have been removed, as any deviation from "average" implies the threat of noncompliance.
The general idea, of course, is NO MISTAKES. But in practice that concept has now evolved (at least in some industries) into "Any Step Where A Mistake COULD Occur Must Be Removed From The Process". Such regulations have been around for decades; at least since the late thirties. But their impact on our favorite industry was less restrictive until the late '80s and early '90s, when the European Community (EC or EEC, which later developed into the EU) began to make compliance with their own, even more oppressive, regulations mandatory for beverage spirits to be sold in Europe. Add to that the fact that European conglomerates (Guiness/UD/Diageo, Pernot-Ricard, Allied Domecq) and Euro-oriented Seagram's had come to own most of the major American whiskey brands, and the shift to more highly-regulated procedures began to really change both the way straight whiskey is made, and the nature of the end-product as well.THAT is what I was writing about, not the difference between batch and continuous distilling
. Although I do, of course, agree with what you've said about those as well. One thing I'd like to add to your points, however, is that one should keep in mind that the column still, as used by the bourbon distiller, is a quite different animal from the alcohol-stripper used by the grain (or gasohol) distiller. The best comparison I've heard is to an electric guitar. Originally, the idea of amplifying the guitar was simply to make it loud enough to be heard in a big band. It's use as a lead instrument began with Leo Fender and Adolph Rickenbacker's hard-bodied guitars featuring electric coil magnetic pickups. Again, the only real advantage was to make the instrument play louder without howling feedback problems. But it was Les Paul's own version that he used, with his inventive approach to recording music, that began the electric guitar's rise to prominence. Still, given the volumes needed in those pre-PA System rock 'n' roll bands, the instrument tended to pick up its own amplifier's vibrations and break into a sustained scream. Thus, in most pop music it was a novelty instrument (think The Ventures) until the likes of Jimmy Hendrix, Pete Townshend, Jimmy Paige, and Carlos Santana showed how that very feedback could be used as part of the input to produce wonderful sounds that cannot be equalled any other way.
Is that description reminiscent of how one would explain column-still reflux? Of course it is; that's why I use it. While Andre Segovia would probably have puked, all great (and most not-so-great) electric guitarists use the instrument that way (or through devices intended to create the same sort of effects). From the mid-1800s to the mid-1900s, that's the way American whiskey distillers "played" their column stills, and I believe THAT (not the occasional pot-still... or doubler CALLED a pot still) is what distinguishes the whiskey.
I also believe it really can't anymore. At least, not exactly. I'm talking about rock 'n' roll again, now. The regulations that outlaw (or at least strongly discourage) on-stage sound levels that would (and did) deafen Pete Townshend make it impossible to create the conditions needed for those sounds. A very close approximation can be made (close enough for those not familiar with the real thing) by using recording studio techniques (signal-devices and close-miking the lower-volume stage amps, for example), and in the end, what does it matter for those who only know the studio CD version and play it at conversation level anyway?
And with whiskey, well... Sometime we'll get together, and I'll share with you some samples of common, everyday bourbon and rye whiskey made before the 1980s, and you'll see the difference immediately. Everyone always does. The whiskey we purchase today is certainly excellent. And I have no doubt that innovators such as Mark Brown and Jimmy Rutledge will find a way to use modern methods to bring nuances and sub-flavors that are lost in the need to limit the product to readily verifiable consistancy. That hasn't happened yet, though. By the way, that isn't an empty offer, and if you let me know ahead of time, I will bring a bottle of ~1907 Cedar Brook (the original W.H. McBrayer) that you can taste when we meet up.
Nor are those major commercial distillers alone. Far from it. The United States (and probably Europe, too; I'm just not as aware of it) is exploding with experimental craft/artisan distilleries. These are tiny operations, and are what I meant by "under-the-radar" (not that they are illegal moonshiners). They are simply small enough to be unaffected by the GMP regulations, or at least by enforcement of them. They're not contracting to ship thousands of cases to European distributors... yet. The FDA Police are not likely to do a midnight raid on their distillery to run a spectroscopy chemical analysis on one of the eight barrels in their warehouse. But if that li'l ole distillery intends to be warehousing eight thousand barrels one day, they sure won't be under the radar anymore, and they'll need to resolve the issue of quality vs regulation. And I'm betting they'll do that better than the Big Boys have done so far. In fact, I'm betting a few hundred dollars on a trip to this year's American Distilling Institute national conference in May (see the Bourbon Expeditions forum) that I'll get a chance to meet some of those distillers. And you already have met some, whether you realize it or not, because many are fellow BourbonEnthusiast members.
Your points are well-made; I hope I've been able to add to them.