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‘Handmade’ Vodka False Ad Suit Largely Tossed by Fla. Judge

‘Handmade’ Vodka False Ad Suit Largely Tossed by Fla. Judge


Source: Law360

By Steven Trader

September 24, 2015


A Florida federal judge on Wednesday found that a proposed class had adequately alleged they were misled by the label of Tito’s Vodka, which contains the statements “handmade” and “in an old fashioned pot still,” but said the only properly stated claim was a breach of express warranty.


U.S. District Judge Robert L. Hinkle nixed the five other claims against Fifth Generation Inc. over the liquor’s allegedly false label, finding that allegations of negligence and unjust enrichment failed and that violations of any Florida business practices were overruled because the federal Alcohol and Tobacco Tax and Trade Bureau, which regulates the interstate sale of spirits, had approved the label.


Judge Hinkle said that, on its own, the representation that Tito’s is “handmade” would be insufficient to support any allegations.


“But the plaintiffs also allege that Tito’s is not made in ‘an old fashioned pot still,'” the judge wrote. “If this is so, it is contrary to the express assertion on the Tito’s label. The plaintiffs have stated an express-warranty claim on which relief can be granted.”


It’s the second time this year the judge has dealt with claims stemming from the “handmade” statement on a liquor bottle. In May, Judge Hinkle tossed a proposed class action accusing Maker’s Mark Distillery of tricking customers into thinking every bottle of bourbon was made by hand. The judge said at the time the term’s literal meaning obviously can’t be applied to liquor.


Likewise, Judge Hinkle returned to the Oxford English Dictionary in his ruling on Wednesday, finding that the statement’s definition – made by hand – obviously can’t be used to literally describe vodka.


“One can knit a sweater by hand, but one cannot make vodka by hand,” the judge wrote. “Or at least, one cannot make vodka by hand at the volume required for a nationally marketed brand like Tito’s. No reasonable consumer could believe otherwise.”


However, because the “handmade” statement in this case is paired with “in an old fashioned pot still,” which the plaintiffs argued was false, the judge found the misleading claims to be reasonably alleged.


“This is not the kind of dispute that can properly be resolved on a motion to dismiss,” the judge wrote. “Perhaps the vodka is made with equipment that can reasonably be described as an ‘old fashioned pot still’; perhaps not. Just from reading the first amended complaint and motion to dismiss, one cannot know.”


Lead plaintiffs Shalinus Pye and Raisha Licht brought the suit against Fifth Generation in May 2014, claiming they bought bottles of Tito’s from their local liquor store based on the label’s claims, which they later found out to be untrue because the vodka is actually made with large machines in a highly mechanized process, according to the complaint.


The pair claimed Fifth Generation had violated Florida’s Deceptive and Unfair Trade Practices Act, and accused it of using bait-and-switch advertising in violation of Florida statutes. They also alleged negligence, breach of implied and express warranty and unjust enrichment.


Seeking to certify a class of Florida consumers, the pair asked for compensatory and punitive damage awards, as well as injunctive relief.


But the judge slapped down the Florida state law claims, saying that because the federal government had OK’d Tito’s labels, the plaintiffs had failed to properly state a claim under which relief could be granted. Likewise, he found that the bait-and-switch claim didn’t apply because the plaintiffs weren’t required to pay more than the advertised price.


The judge pared the implied warranty claim as well, saying that the vodka sold was still fit for its ordinary consumption purposes.


Representatives for both parties on Thursday didn’t immediately return a request for comment.


Plaintiffs are represented by Tim Howard of Howard & Associates PA.


Fifth Generation is represented by John Londot and Rick Shackelford of Greenberg Traurig PA.


The case is Shalinus Pye et al v. Fifth Generation, Inc., case number 4:14-cv-00493, in U.S. District Court for the Northern District of Florida.