Geographic Indications and International Trade (GIANT)

I. Identification

1. The Issue

Under the North American Free Trade Agreement (NAFTA), only Mexico can prodcue and claim the product name "Mezcal". The products also claim protection, and only wines and spirits can do so, under the World Trade Organization (WTO) and its limited support for recognition of geographic indications. Mezcal has a long history dating back to the Aztecs and relies on the output from the agave plant. This is the same plant that is used to create tequila, another traditional Mexcian drink protected under NAFTA.

2. Description

Mezcal is the most authentic Mexican distilled spirit, since it can only be exported in bottle, not bulk (which makes it controlled and authentic). "Mezcal" originates from the Aztec Nahuatl word for "cooked pineapple," since the Agave plant from which it is made has thick, pulpy leaves that end in hard spines that stem from a central trunk, like a huge pineapple. The plant is only distantly related to the cultivated pineapple. The Agave is in the division Magnoliophyta, class Liliopsida, order Liliales, family Agavaceae; it is a succulent, which is a kind of plant that is indigenous to arid or semiarid regions, and are adapted to extreme heat and dryness. The cultivated pineapple, however comes from the division Magnoliophyta, class Liliopsida, order Bromeliales, and the family is of chiefly epiphytic herbs and small shrubs that are native to the American tropics and subtropics.

Mezcal is not Tequila, though both are distilled from the Agave plant (not the Agave cactus); Mezcal is distilled from the Espadin variety of the plant, in specific, which is the predominant form. The Agave plant was a central part of the lives of the Aztec in Mexico. The fermented beverage, "pulque", had a sacramental and medicinal value, and was not drunk for pleasure; it is believed to be the predecessor to both Tequila and Mezcal. The fibers of the plant were used for producing cloth; the pulp was used for producing paper; the leaves were used for hut roofs; the thorns were used for needles and hooks; and the plant was used to make Miel de Agave (Agave honey) and syrup.

The distillation process is also quite different. The Spanish conquistadors introduced the process of distillation to the Mexican natives, and they applied it to the production of Mezcal. Natives believed that this drink purified the soul by ridding the body of evil spirits. Mezcal soon became a valuable commodity for trade among local indigenous tribes, and eventually, as production was formalized, it became an exportable commodity. Modern Mezcal production differs only slightly from the original Colonial method. This is in large part due to the fact that the Zapotec Indians are still the primary producers of Mezcal.

Most of the operations are done on small, family farms that are terraced into the hills at 8,000-8,500 feet altitude, which sell their product to larger companies for bottling and bulk sales. Instead of steaming the plant in pressure cookers, as is done in Tequila production, the leaves are removed from the mature plant's core, which is then cut in half and placed in a clay oven in the ground. The "oven" is basically a conical hole in the ground, 5-8 feet deep and 12-15 feet across, made with fireproof bricks, is preheated for 24 hours with wood, covered with the plants' moist leaves that contain a natural yeast, fireproof stones and clay, and left to braise for 2-3 days (which gives Mezcal its smoky taste and flavor). The cores are then left in the sun for several days before seperation and fermentation. (This process is at least 4,000 years old.) Then, mules draw a stone wheel over the braised core, in order to separate the pulp from the fiber. The pulp "is then macerated in pure water, and with the help of the local airborne yeasts, the fermentation begins and lasts several days producing a 'beer like juice known as 'mosto', similar to the production of the Indian alcoholic drink 'Pulque' produced directly from the Agave sap."

Fermentation can take from 13 days to four weeks, depending on temperature and humidity. Mass producers speed the process using urea and ammonium sulfate, but traditional producers leave it to local airborne yeasts and the maguey.

"Modern mezcal is usually filtered through charcoal and cellulose to soften the aroma, or through sand to refine the texture and clarity." The liquid is then distilled (twice for domestic markets and three times for export) using bamboo, not copper, pipes, and broken down with de-ionized water. It is then aged for three months to a year. Traditionally, mezcal aged in cured, black clay, ceramic jugs; the use of imported oak barrels for aging began in the 1950s.

The Agave is valuable to modern-day locals for several reasons. One is that the plant requires no irrigation; it is perfectly suited to the arid climate, in which no other crops nor cattle can survive so naturally. Agave plantations grow the plants 2 meters apart in rows that are spaced 3.5 meters apart, which is much greater spacing than the more fertile and less arid Agave plantations in Jalisco for Tequila production. The Agave in Oaxaca grows 1000-2000 per hectare, to an average of 50-70 kilos weight, taking 8 years to mature, and produces roughly 5 liters of distilled Mezcal each.

Another reason is the worm-collecting industry. The night butterfly lays its eggs on the leaves of the Maguey plant. Once the eggs hatch, the larvae burrow into the plant, and stay there until maturity. That is, unless they are harvested first, to put into the Mezcal bottle. A few local families conduct the worm harvesting during the right climactic conditions (hot and humid/rainy) or prod them out with the Agave spines. Collectors have to be careful not to injure the worms, since injured worms will only cloud the Mezcal. There are between 200-500 worms per plant, at 20-40 US cents per worm. This lucrative business attracts not-so-careful collectors, who will actually uproot and destroy an Agave plant to harvest the worms. The Mezcal industry has to compete with the traditional, local culinary tastes, too. The worm is a delicacy and the key to many Oaxaqueno recipes. This demand creates a shortage of worms whose process of creation cannot be artificially enhanced.

Mezcal producers have concentrated on differentiating their product from Tequila, trying to give it a more sophisticated reputation, versus the college-party reputation of Tequila. Producers compare Mezcal to more of a fine cognac. By Mexican law, Mezcal must be made from 100% agave and have an official seal. Due to modernized production methods, Tequila producers have had to counter limited land and crops by adding up to 49% cane liquor or other alcohol, unless otherwise stated on the label.

The cheaper mezcals have the traditional red worm in the bottle as a means of attracting consumer attention, and hopefully steering them towards the more expensive brands later. However, bottles shipped to Asia will have up to five worms per bottle so that each person can have a worm in his or her glass.

The Mexican government updated the legal mandates for Mezcal in 1997 (http://www.donamado.com/norma.html). The norms state that there are two types of Mezcal: Tipo 1 is 100% agave, and Tipo 2 is at least 80% agave. The norms also outline the aging categories, and mezcal subcategories. While Tequila can only be made from one variety of maguey (the tequiliana weber blue variety), Mezcal can be made from several species, 24 of which grow in Oaxaca. These are the only six counties in Oaxaca state that can use the AOC to officially produce Mezcal: Sola de Vega, Miahuatlan, Yautepec, Ocotlan, Tlacolula, and Ejutla.

3. Related Cases

See other TED cases on geographic indications and related trademark issues at the project on Geographic Indications and International Trade (GIANT) project. Click here to access GIANT case studies.

4. Author and Date: Suzan Herzeg, Bryan Rund and Jim Lee

II. Legal Clusters