ambiguity over who was first African-American bourbon distiller in Kentucky dooms false advertising claim

Victory Global, LLC v. Fresh Bourbon, LLC, 2025 WL 366626, No. 5:21-62-KKC (E.D. Ky. Jan. 31, 2025)

After dealing with a motion to dismiss, the court now grants summary judgment in this case brought by one African American-owned bourbon seller against another.

Victory operates as Brough Brothers, which claims it was the first “African American owned bourbon distillery in the Commonwealth of Kentucky,” with the requisite licenses to operate a distillery by September 2020. By December of that year, it had distilled bourbon and filled its first bourbon barrel in a leased Kentucky facility. Brough Brothers alleged that Fresh Bourbon falsely advertised that Fresh Bourbon is the “first black-owned bourbon distillery in Kentucky,” and made other related claims. Fresh Bourbon didn’t lease a facility until early 2022 and did not obtain the required federal and state licenses to operate a distillery until September 2022. It began distilling its product at this facility in late 2022.

However, Fresh Bourbon submitted evidence that, in 2018, its representatives were “distilling” bourbon that it sold under the name “Fresh Bourbon” at Hartfield & Company Distillery in Paris, Kentucky, even though it didn’t own or operate its own distillery and could not legally have done so.

Challenged statements: 1) Fresh Bourbon was the “first black-owned distillery in Kentucky”; 2) Fresh Bourbon is the “[f]irst black-owned bourbon distillery coming to downtown Lexington” (not shown to be false); 3) “There had been no African Americans producing bourbon that weren’t slaves” until Fresh Bourbon did it; 4) Fresh Bourbon is “the first bourbon developed grain to glass by African Americans in the state of Kentucky”; and 5) Fresh Bourbon employed Kentucky’s “first African American Master Distiller in Kentucky since slavery.”  

Fresh Bourbon argued that it didn’t say that it was the “first black-owned distillery in Kentucky” but that it was “considered by the Commonwealth of Kentucky to be the first black owned distillery in Kentucky,” given Kentucky Senate Resolution No. 176, which stated, “The Fresh Bourbon Distilling Company is considered to be the first black-owned bourbon distillery in Kentucky.” An online news article made the “first black-owned distillery” statement, but not quoting any Fresh Bourbon representative, and Fresh Bourbon wasn’t shown to have used the article in any marketing. Thus, the actual statement wasn’t literally false, given the Senate resolution, even if the resolution was drafted by Fresh Bourbon’s representatives.

For the “producing” and “developing” statements, Brough Brothers argued that Fresh Bourbon’s “minimal contributions” to producing bourbon at Hartfield couldn’t constitute producing or developing bourbon. The court, however, found the statements “at least ambiguous as to the degree of involvement of the actor.” And the owner and master distiller of Hartfield testified that Fresh Bourbon representatives were eventually engaged in all aspects of the bourbon-making process, eventually had “free reign in the building,” did “everything” in the bourbon-making process without anyone from Hartfield present, and mashed and distilled the bourbon. The statements at issue didn’t claim to have a distiller’s license and permit. Plus, Brough Brothers’ own expert testified that it was “impossible to verify” whether Fresh Bourbon representatives were the first African Americans to make bourbon since slavery.

Similarly, the statement that Fresh Bourbon employed Kentucky’s “first African American Master Distiller in Kentucky since slavery” was “either ambiguous or an opinion, which cannot be the basis for a Lanham Act false advertising claim.” Apparently “Master Distiller” has no set definition. Brough Brothers’ own expert testified that the term has no “legal definition” and is “basically” a matter of opinion.

Even assuming that Brough Brothers had shown falsity, it still failed on materiality. Even with literal falsity, materiality must be shown.

If a company makes a literally false statement, then it can be presumed that the consumer who receives the statement was deceived. But whether that statement had any bearing on the consumer’s buying decision is a different issue…. For example, if a company advertises that its shampoo was manufactured in New Jersey, but it was actually manufactured in Pennsylvania, then it can be presumed that consumers were deceived about where the product was manufactured. But whether the place the shampoo was manufactured means enough to influence consumers’ buying decisions requires some evidence.

The fact that both parties used “first black-owned distillery” in their marketing campaigns was insufficient. Materiality “requires factual evidence concerning the relevant consumer market and the perspective of the potential customer in that market.”

State law claims also failed.