The Latest Affront To Traditional Mezcal:  NOM 199

by Clayton J. Szczech, December 4, 2015

Half of Mexico’s population lives in poverty, and yet the country’s Secretary of the Economy is making it a priority to clarify the definitions of frozen shots and Slivovitz. No, really. Oh yeah, and at the same time, renew its attempts to further marginalize small and traditional producers of mezcals and other regional spirits to the benefit of huge industrial producers.

The proposed legislation in question (PROY-NOM-199-SCFI-2015– we’ll just call it NOM 199) was published on November 25, though most of us in the agave and spirits world became aware of it thanks to David Suro raising the alarm online on December 2. The omnibus proposal would define and regulate all alcoholic beverages – domestic and imported – sold commercially in Mexico. It was created with the participation of the Tequila Regulatory Council, the National Chamber of the Tequila Industry, the Mezcal Regulatory Council, Diageo, Pernod Ricard, and Mexico’s two beer giants (note that this doesn’t necessarily mean that any one of them endorse the final document in its entirety).

The document’s preamble cites consumer protection as the goal of NOM 199. If that sounds familiar, it’s because the same argument was claimed for 2012’s NOM 186 revision, which would have severely restricted and marginalized the production of many of Mexico’s traditional regional spirits. Ultimately, PROFECO (Mexico’s federal consumer protection agency) came out against that proposal. A coalition of small producers, academics, and advocates from the worldwide bar industry (spearheaded by the Tequila Interchange Project – TIP) ultimately defeated that proposal, and a related one that would have trademarked the word “agave.”

In the two short days since the proposal came to light online, forces are already mustering to defeat it. I’ve spent the better part of that time analyzing the document and gathering various perspectives in an attempt to summarize its contents in English. All English translations of the original text are my own.

While Mexican legal documents are typically Byzantine, this one is truly bizarre. Content aside, as a proposal it’s pretty incoherent, and in fact its many detractors suspect it was crafted to be deliberately confusing. Whether that’s the case, or whether it was simply the unfortunate result of writing by committee, it reads like a C-student regurgitating everything he thinks he knows about booze for an essay exam he crammed for the night before. But what it actually says is even worse.

‘¿Que?’ is for Komil

Tequila, mezcal, pulque, Bacanora, sotol, raicilla, charanda, and Comiteco are among the traditional Mexican beverages classified in the document, as is something called “Komil.” A Náhuatl (Aztec) word for “alcoholic beverage,” not a single person I spoke with this week – anthropologists, mezcal researchers, industry leaders – had ever heard the term. It was apparently plucked from a book by the backers of this proposal as an ahistorical dumping ground for agave distillates outside of any Denomination of Origin (DO) – spirits that traditionalists regards as mezcals that have been excluded from the DO.

“Komil” is defined as agave distillates (with as little as 51% agave!) from outside any DO region, having 32-55% ABV. Crucially, its producers would not be able to “make reference to plant varieties recognized in any Denomination of Origin” on their label or in any commercial material. In plain language, that means producers would be prohibited from using the words “agave” or “maguey.” This is that earlier attempt to trademark the word “agave,” which made its backers an international laughingstock, reborn. Or as one person remarked online – “zombie NOM 186.”

This would be disastrous for producers of, for example, mezcal in the state of Mexico, which is outside of any DO. Producers, currently forced to sell their mezcal as agave distillate, would instead have to sell “Komil” – something nobody has ever heard of – and would not be allowed to mention that it is made from agave. But there is also a permissive side to this that is at least as frightening. A global spirits giant could immediately set up a massive industrial facility, in any non-DO region, and produce a 51% mixto “Komil,” which would be exponentially cheaper, though commercially indistinguishable from the traditional juice. It’s easy to imagine the small producers driven entirely out of the marketplace, while the big guys introduce a “new traditional Mexican spirit” to the global marketplace.

Raicilla, Comiteco, and Cocktails

Although there are troublesome details throughout the classifications of beverage categories, the cases of raicilla, Comiteco and cocktails deserve special mention.

Raicilla is a traditional mezcal of Jalisco, made primarily in the northern mountains between Guadalajara and Puerto Vallarta, and the coastal range from Vallarta southward. It does not currently have Denomination of Origin status. The proposal would allow raicilla to be produced anywhere in the states of Jalisco and Nayarit, and allow the use of any agave varietal besides the tequilana. Pedro Jiménez, one of Mexico’s best known advocates for traditional mezcal, works closely with traditional raicilla producers in western Jalisco. He calls the proposal “the ultimate hypocrisy” in that it claims consumer protection as its goal, but will ultimately confuse and even deceive consumers with its hodge-podge of watered down, bastardized and made-up categories. “Not only that – it’s a total slap in the face, a denial of the human rights of traditional mezcal producers to work and practice their culture.”

In the classification of raicilla, other than stating the agave must be both mature and cooked, absolutely no production methods are mentioned or excluded. So, similar to the “Komil” example above, traditional producers could be forced into competition with “raicillas” made with autoclaves, chemical accelerants and column stills in, say, Tepic – far outside the actual raicilla region. Other traditional mezcaleros in Jalisco would also be forced to call their product “raicilla,” contrary to their unique history and traditions.

Comiteco is a traditional spirit made from pulque and sugar cane in the region around Comitán, Chiapas. The proposal, in defining Comiteco, makes no mention of any specific region, or of pulque. It says that Comiteco must be made from at least 70% “Maguey Comiteco” and some cane-based sugar source. No methods of production are mentioned or excluded. Here again, we can easily imagine a scenario in which this regional specialty has its tradition robbed with the introduction of “Comiteco” made with diffusers (chemical hydrolysis) in Mexico City or Cancún.

The proposal also defines cocktails, presumably for both ready-to-drink and on-premise consumption. The highlight? “Cocktails with mezcal” (for example) could have as little 25% of their alcohol content be mezcal! So your next mezcal margarita at the hotel bar might contain as little as 0.5 ounce mezcal and 1.5 ounces cane liquor (which itself is made from only 51% sugar cane, as defined elsewhere in the proposal), and the establishment would have no obligation to disclose that fact.

Although the proposal addresses pulque, Bacanora, sotol, raicilla, charanda, and Comiteco, not a single producer of these beverages was involved in the meetings where it was created.

Wake Up, It Gets Worse!

The majority of the proposal consists of a seemingly endless list of beverage types, from “anisette” to “vino.” If it weren’t for the unintentionally humorous errors, this litany could easily put you to sleep. Which may be intentional, since some of the most onerous stuff is buried toward the end, in Section 12, under the dry heading “National Products.”

This section requires producers of all alcoholic beverages to have their raw material and production inspected and certified, at their own expense. While at first blush this may seem reasonable, and is no different from the current practice for Tequila and certified mezcals, the reality here is quite different. There currently are no inspectors for products like sotol, raicilla, and other regional spirits, not to mention that few producers could afford such a luxury in the high-poverty regions where some of the best spirits are made.

Reflecting a further disconnect from the daily reality of average Mexicans, the proposal would require producers to produce complex and expensive financial records (facturas) for the purchase of their raw material. No mention is made of producers who grow or wild harvest their own agave, sotol or cane.

The CRM Perspective

The Mezcal Regulatory Council (CRM) participated in the creation of NOM 199, which seems to fly in the face of its recent proposed revisions to mezcal’s NOM 070. The CRM’s proposal was crafted over a year’s worth of meetings with mezcal producers from throughout the current DO, and seeks to officially recognize artisanal and traditional methods of production. NOM 199, on the other hand, seems oblivious at best (and utterly disdainful at worst) to tradition, and was created by a group whose vast majority was large Tequila producers (even an international Scotch whisky association was excluded – which is reflected in the many errors in the whisk(e)y section).

CRM President Dr. Hipócrates Nolasco calls the proposal “incomplete – something like an index.” He points out that producers weren’t able to make the trip to Mexico City, and insists that the CRM did its best to “defend mezcal, defend raicilla, defend Comiteco, defend pulque.” It is noteworthy that mezcal is the one beverage category defined simply by a reference to its own Norm – the result of Nolasco’s desire to keep this group from meddling in the current reform process. While acknowledging the many flaws and incoherencies of the document, he sees it as a necessary first step in regulating all alcoholic beverages in Mexico – reportedly 40% of which are counterfeit. “The project is well intentioned, but we have many criticisms,” he concluded.

What is Next?

The proposal has been submitted by the Mexican Secretary of the Economy for publication in the Diario Oficial (similar to the US Congressional Record). It may be published as soon as mid-December. Once published, there were will be a 60-day public comment period. Efforts are already underway in Mexico and the US to organize opposition to the proposal, and in defense of traditional Mexican spirits and the communities that produce them. Please sign up for my newsletter (in the upper right hand margin) and follow the Experience Mezcal Facebook page for updates on the various efforts.

Thanks to David Suro for bringing this to light, and to Pedro Jiménez, Erick Rodriguez, Dr. Ronda Brulotte and Dr. Hipócrates Nolasco for their time. Any errors or omissions are solely mine. By the way, the thing about frozen shots (sec. 7.5.3) and Slivovitz (sec. 7.2.21) is true – and my Slovakian friends will be sad to know that Mexico now says all Slivovitz is Serbian or Bosnian.