Monday, May 11, 2015

"Handmade" is too vague to be actionable for bourbon

Salters v. Beam Suntory, Inc., 2015 WL 2124939, No. 14cv659 (N.D. Fla. May 1, 2015)
Plaintiffs alleged that Maker’s Mark bourbon was falsely advertised as “handmade.” In a pithy opinion, the court found that they couldn’t state a claim for falsity.  As support for the allegations of falsity, plaintiffs alleged that “Maker’s Mark is not made by hand but is instead manufactured with large machines in a highly mechanized process.”
Handmade means “made by hand,” although that is of course circular:
But the term obviously cannot be used literally to describe bourbon. One can knit a sweater by hand, but one cannot make bourbon by hand. Or at least, one cannot make bourbon by hand at the volume required for a nationally marketed brand like Maker’s Mark. No reasonable consumer could believe otherwise.
RT: Last I checked, knitting usually required tools, albeit simple tools.  (There is a method known as finger knitting, also arm knitting, but it can’t, as far as I know, produce a sweater.)  It’s amazing how technology can be invisible to us in particular ways.  Like making a sweater, making bourbon requires tools—the question is whether they are hand tools.
Plaintiffs didn’t argue that “handmade,” in the context of bourbon, meant “literally made by hand.” They offered other possible meanings, including “made from scratch or in small units.” But the defendants say they made Maker’s Mark that way, and the plaintiffs didn’t allege otherwise, or challenge the representation on the label that each batch consists of no more than 19 barrels. Plaintiffs argued that “handmade” implies close attention by a human being, not a high-volume, untended process. But the defendants again said their human beings paid close attention and that they made their bourbon in small, carefully tended batches. Plaintiffs alleged no contrary facts, nor could they plausibly allege that they were unaware that Maker’s Mark is mass marketed nationwide.
Then plaintiffs tried the argument that “handmade” means made with only some kinds of machines, not others, and that defendants used machines that were too big or too modern.  “[I]t is hard to take from the word ‘handmade’ a representation about the age, or even the size, of equipment used in the process.”  (This debate about authenticity occurs in many “craft” spaces—I’ve seen woodworking debates over what counts as a “legitimate” hand tool.)
Then plaintiffs contended that “handmade” “connotes greater value and trades on the current fashion that also brought us craft beer.” Construed as such, “a general, undefined statement that connotes greater value, detached from any factual representation” was mere puffery.

1 comment:

  1. I'm guessing 'artisan' fits in the same box.