Who Owns Agave?

As with the various appellations of origin that rule the wine world throughout Europe, the AOs that fix where tequila and mezcal can be made have proved a double-edged sword. On the positive side, they set up borders and standards by which Mexico's ancestral spirits may be created. But, like the official wine-growing regions, they were set up by governments preoccupied with political concerns that often trumped cultural realities.

What this means is that some AOs in the Mexican system were granted as a favor to some political bigwig, while other states that ought to have been included were left out of the deal. As a result, the country ended up with a set-up in which the borders of the AOs do not necessarily accurately reelect the historical traditions of spirits production in Mexico. Of Mexico's 32 states, about 27 produce agave, the plants that are the base of tequila, mezcal and other native Mexican spirits. Less than half of those states are AOs. And so many small distillers who have been making mezcal generation after generation, but whose lands lie outside the AOs, have not been able to call their mezcal by the name of mezcal.

This unfair situation will likely be exacerbated should a new piece of Mexican legislation, called NOM-186, be passed into law. If it is, those unlucky producers would also not be able to describe their agave spirits using the word "agave."

The NOM (the acronym stands for Norma Oficial Mexicana) is being sponsored by the Mexican National Chamber of the Tequila Industry, a trade organization known as CNIT, which is composed of more than 60 tequila producers, including some of the industry's largest, such as Jose Cuervo, Herradura, Sauza and Partida. It's a long, complex, and multi-pronged piece of legalese, but it's central thrust is to take control of the word agave, and reserve it for the use of the tequila, mezcal and bacanora (another mezcal-like spirit that has its own AO) producers who work with the official AO borders.

Now, since the terms "tequila," "mezcal," and "bacanora" are already regulated by law, why should anyone worry about the way "agave" is employed? Well, because it, too, has become a coin of the realm, as far as the marketing of Mexican spirits is concerned. As CNIT's director general, Francisco Soltero Jiménez, told me, "The word agave has been made popular. Some people have realized this and, knowing that they can not use the names tequila, mezcal and bacanura, have used agave to say to the consumer that they are the same at tequila, mezcal and bacanura. The consumer is misled when they see the word agave."

NOM-186 would severely legislate the use of the word. Distillers inside the AOs who make agave spirits, but don't make tequila, mezcal or bacanora, could not use the term. And nobody who makes booze outside the AOs could. Agave would, in effect, be branded.

The problem with this, say opponents on NOM-186, is that agave is at the root of many other indigenous Mexican distillates. Example: raicilla, a traditional, mezcal-like liquor common to Jalisco, a province known for tequila production. These liquors, in the NOM was made law, would have to call their products "agavacea aguardiente" or "distilled agavacea," obscure terms that smack of the science lab. The same would hold true for agave spirits made outside the AOs, including many artisanal specimens that are mezcals in all but official name.

This is all in the name of the consumer, argues CNIT. Mr. Soltero said that the legislation is meant to combat "problems that, from our point of view, are misleading consumers. These misleading actions are affecting the protected names of products like tequila, mezcal and bacanura, which here in Mexico are a very important part of the culture and identity of the people."

But, to opponents like Phil Ward, the owner of New York's agave-focused bar Mayahuel, NOM-186 will eventually perform the opposite of what CNIT says is it's intended function: to protect the customer. "They say they don't want people to be deceived," said Ward. "But by their rationale, there are going to be bottles of mezcal that are made from agave that can't be called mezcal or agave. They're replacing a deception with a deception."

Mexican bartenders, too, are upset by the legislation. Added Pedro Jiménez, the owner of Pare De Sufrir, a popular mezcal bar in Guadalajara, "These little producers—who have worked for centuries in these spirits, way before any AO was established—won’t be able to use the word agave to describe their spirits, even though they are made from this plant."

There is more bad news in the NOM for small agave distillers. The legislation also states that makers of agave liquors that are not tequila, mezcal or bacanora could no longer practice their trade within the AO borders. "Anyone can grow any kind of agavaceae in Mexico and this would remain the same," said the CNIT's Soltero Jiménez. "But they would not be able to use them to produce spirits from plants that come from the protected areas, since this would lead to confusion and deception."

So raicilla, made for generations in Jalisco, could no longer be made in that state.

And there's more to handicap the distiller working outside the AOs. According to the proposed regulation, spirits using the term "agave distillate," which would indicate liquors using 100% agave sugars, could only be bottled at alcohol levels between 25% to 35%.

"This is completely against what these people do," said David Suro-Piñera, the founder of Siembra Azul Tequila and Tequilas Restaurant in Philadelphia, and a vocal opponent of the legislation. "These producers produce a high-proof product, not less that 40% and typically 55% alcohol." If you want to make spirits at the ABV, you have to keep your agave content to 51%. "They are pretty much forced to make mixtos," said Suro-Piñero. "You don't have to be an expert to raise your eyebrow at this."

This part of the measure, said Patricia Colunga, a professor at theCentro de Investigación Científica de Yucatán who has degrees in biology, ecology and botanics, "has nothing to do with the declared objective of the NOM-186 to give accurate information to consumers and to prevent the offering of adulterated liquors to the consumers. Instead, it has the evident intention to push the artisanal mezcal makers and their high quality distillates from their traditional market niche so they cannot present any competition."

Ward agrees with Colunga that the real thrust of the bill seems to be the undermining of Mexico's small agave distillers, the sort whose artisanal bottlings have been embraced in recent years by American and Mexican drinkers and bartenders.

"I think it's big companies trying to squash the little companies," Ward said. "Think of what microbrews have done to the big beers in this country. Now you see the big companies coming out with craft brew. Instead of adjusting by making special brands of tequilas, the large tequila companies are trying to squash it. This is tequila saying 'No, we're not going to adapt.'"

The NOM is particularly galling to its opponents in that few, if any, of its dicta would affect the members of the CNIT, which is backing the bill. "I think that a NOM with the objectives that they declared should have been written with the cooperation of producers who would be regulated," contended Colunga.

Colunga also thinks the NOM, if it is meant to create truth in advertising, should also address the way tequila is labeled. Under current Mexican law, a tequila may call itself tequila if its contents include at least 51% agave sugars. (These are commonly known as "mixtos" and considered inferior products by tequila mavens.) The passage of the NOM would mean that a big tequila brand with just a tad over half agave inside the bottle could advertise itself as agave, while a small mezcal maker working outside the AOs, and using 100% agave, would have no rights to such a boast.

"This very clearly would nullify the consumers ability to compare, in an objective way, the quality of these products with those that are produced within the areas protected under the AO Tequila, Mezcal and Bacanora, in order to make an informed choice by assessing contents, quality and price," said Colunga. "Mexican Official Standard for Tequila does not demand explicit and detailed labeling of 'mixed tequila' or 'tequila-rum.' When a consumer buys one of these products, he is not informed explicitly that it is made with only 51% Agave sugars, and the raw matter from which the remaining 49% alcohol was obtained is never revealed."

The NOM, detractors say, would also hinder biodiversity, since it will encourage the grown of only certain agave plants, the ones that by law can be used to make tequila and mezcal. "There are over 200 species of agaves in the world and more than 120 are endemic of our nation," said Pedro Jiménez. "The spirits that the NOM-186 wants to protect are made out of around only 10 species of agave, so that would also be a wrong information. There are at least 39 species of agaves used to make traditional mezcal in our country. So more than 200% of them would be cut off."

Here is a more concise write-up of the issues I wrote for the New York Times' Diner's Journal. A decision on the bill is expected in the weeks to come.

The agave industry in Mexico has experienced a series of hard knocks in recent years. Over-manipulation of agave plants, designed to speed along the plants' slow growth, had resulted in fields of sickly plants. And the price of an agave has dropped to a record low, leading to the migration of veteran farmers, who take their long knowledge on how to raise the finicky plants with them. Meanwhile, trade agreements between Mexico and the United States continue to allow the bulk of tequila to be bottled Stateside absent of any Mexican oversight of regulation.

These practices have led some spirits writers to despair that tequila, just as it is cresting in popularity, is doomed to become the next vodka—a category robbed of quality, character and diversity by the shoddy, corners-cutting practices of big corporations trying to reach the widest audience possible as quickly as possible.

To people like Colunga, NOM-186 would be another nail in the coffin on Mexico's liquid heritage.

"Hundreds of these producers have already been excluded by the AO Mezcal and are voided from commercially naming their mezcals with the term that, based upon their legitimate and historical right, they should be able to use: mezcal," Colunga told me. "These producers have been forced to commercially use the terms Agave distillates or aguardiente, resulting in a strong barrier for the commercialization of their spirits. Therefore they are not being able to transmit to the consumer the great tradition that lies behind their product through the historical concept of mezcal.

"In addition to this barrier poised by exclusion from the AO Mezcal, now they intend to set two more by prohibiting their use of the word agave and by prohibiting the indication to the consumer of their content of 100% of sugar obtained from the sugar of Agave plants. This will mean the exclusion of hundreds of traditional artisanal mezcal producers from the alcoholic beverage market."