A Florida federal court has dismissed five putative class action claims, allowing one to continue, against Fifth Generation Inc. in a lawsuit alleging Tito’s® Handmade Vodka is not actually made by hand in “an old fashioned pot still” and thus is deceptively marketed. Pye v. Fifth Generation Inc., No. 14-0493 (N.D. Fla., order entered September 23, 2015). The court cited its May 2015 decision in Salters v. Beam addressing similar claims against Maker’s Mark®, finding that “[m]uch of the analysis here repeats what was said there.” Details about that decision appear in Issue 564 of this Update.

The plaintiffs alleged that “handmade” means “made from scratch” or “in small units,” with human involvement in the process. The court disagreed, finding, “No reasonable person would understand ‘handmade’ in this context to mean literally made by hand. No reasonable person would understand ‘handmade’ in this context to mean substantial equipment was not used. If ‘handmade’ means in a carefully monitored process, then the plaintiffs have alleged no facts plausibly suggesting the statement is untrue. If ‘handmade’ is understood to mean something else—some ill-defined effort to glom onto a trend toward products like craft beer—the statement is the kind of puffery that cannot support claims of this kind.” Accordingly, the court dismissed five of the plaintiffs’ six claims.

The argument that the vodka is not made in an “old fashioned pot still” as claimed on the label was more plausible, the court found. “This is not the kind of dispute that can properly be resolved on a motion to dismiss. 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.” The court then allowed the claim for breach of express contract to continue. Details about similar lawsuits against Fifth Generation appear in Issues 563 and 575 of this Update.