Fifth Generation, Inc., maker of Tito’s® Handmade Vodka, has filed an opposition to a motion to consolidate eight proposed class actions alleging the vodka is mislabeled as “handmade” because it is manufactured with an automated process. In re Tito’s Handmade Vodka Mktg. & Sales Practices Litig., MDL No. 2634 (J.P.M.L., motion filed April 28, 2015). The company argues that the eight lawsuits are in seven jurisdictions and include claims based on the laws of several different states. Further, several of its motions to dismiss are already fully briefed, Fifth Generation says. If the panel determines that multi-district litigation (MDL) is appropriate, the company argues that the Western District of Texas or the Northern District of Florida would be venues better suited for the litigation than the proposed Southern District of California because the average duration of cases in California is longer than in the former two jurisdictions. Issue 563
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Texas has settled a trademark dispute with Alamo Beer Co. and Old 300 Brewing after the state intervened in Alamo Beer’s lawsuit alleging Old 300 infringed its trademarked Alamo silhouette. Alamo Beer Co. v. Old 300 Brewing, LLC, No. 14-285 (W.D. Tex., consent order entered April 28, 2015). According to court documents, the settlement establishes that Texas owns the premises of the Alamo in downtown San Antonio and “[a]s the owner, the State also owns the image of the Alamo and the right to commercialize that image to whatever extent the State, as owner, decides to do so. Such commercialization includes the right to use or license the use of the image on product labels.” The consent order further lists the state’s federally registered trademarks related to the Alamo, which it uses to sell products at the landmark’s gift shop. Under the final judgment, Alamo Beer and Old 300 are permanently…
A consumer has filed a putative class action in Louisiana federal court against several California wineries alleging that their products contain “dangerously high” levels of arsenic, echoing a similar lawsuit filed in California in March 2015. Crespo-Bithorn v. The Wine Grp. Inc., No. 15-1424 (M.D. La., filed April 20, 2015). The complaint alleges that the wineries “sell and distribute wine to consumers at inorganic arsenic levels significantly higher than what the State of California considers the maximum acceptable limit for safe daily exposure” and asserts that the advertising and marketing of each wine was deceptive because it failed to warn of the arsenic levels. The plaintiff seeks national and state class certification and damages for the Louisiana cause of action of redhibition as well as alleged violations of Louisiana consumer protection statutes and the Magnuson-Moss Warranty Act. Details about the March lawsuit appear in Issue 559 of this Update. …
Saeilo Enterprises Inc., and Alphonse Capone Enterprises Inc., have reportedly reached a settlement in a lawsuit alleging trademark and trade dress infringement for a bottle of vodka branded as “Tommy Guns Vodka” and shaped like Saeilo’s Thompson submachine gun. Saeilo Enterprises, Inc. v. Alphonse Capone Enterprises, Inc., No. 13-2306 (N.D. Ill., notification of docket entry filed April 21, 2015). The gun manufacturer alleged in its complaint that the vodka company misappropriated the trade dress and trademark of the Thompson gun with the shape of the bottle and the name, and Saeilo sought an injunction, damages and attorney’s fees. A notice filed with the court indicates that the parties have reached a settlement and will file a stipulation to dismiss, but terms of the settlement were unavailable. Issue 562
The U.K. Advertising Standard Authority (ASA) has dismissed a complaint alleging that a message on Diageo Great Britain Ltd.’s Guinness® Twitter feed “implied that someone’s week would be improved by drinking alcohol.” Filed by Alcohol Concern, the complaint dubbed a tweet appearing on @GuinnessGB “irresponsible” for featuring a photograph of the iconic brewery’s gates with the caption, “a good week starts here.” Dismissing the challenge, ASA ultimately agreed with Diageo Great Britain that consumers would recognize the gates as belonging to St. James Brewery in Dublin and would not confuse the brewery with a bar or other social venue where alcohol was consumed. According to Diageo Great Britain, the followers of @GuinnessGB would also understand the tweet as part of a larger ad campaign highlighting individual workers at the brewery. “We also noted that the photo was tweeted on Monday,” states ASA. “In this context, we considered that the ad…
Two consumers have filed a putative class action against Anheuser-Busch in California state court alleging that the company misuses the “Product of U.S.A.” claim on Busch® beer cans because the product is brewed with imported hops. Nixon v. Anheuser-Busch Cos., LLC, No. 15-544985 (Cal. Super. Ct., San Francisco Cty., filed March 27, 2015). The complaint asserts that Anheuser-Busch charged premium prices for beer made in the United States despite using imported hops, or “a significant portion” of the beer. The plaintiffs allege unfair competition and a violation of California’s “Made in USA” law. They seek to represent a statewide class of purchasers and to receive damages and an injunction. Issue 561
The Tennessee Office of the Attorney General has released an opinion finding that a state law requiring products labeled as “Tennessee Whiskey” or similar designations to be filtered through charcoal unconstitutionally exempts Prichard’s Distillery because the statute includes a grandfather clause created to apply only to the distillery. The 2013 law codified the “Lincoln County Process” of making whiskey, which requires that the product is (i) manufactured in Tennessee; (ii) composed of 51 percent corn; (iii) distilled to no more than 80 percent alcohol by volume; (iv) aged in new, charred oak barrels in-state; (v) filtered through maple charcoal before aging; (vi) placed in the aging barrels at no more than 62.5 percent alcohol by volume; and (vii) bottled at no less than 40 percent alcohol by volume. If a product does not fulfill each requirement, it cannot be advertised, labeled or referred to as “Tennessee Whiskey” or “Tennessee Sour Mash…
Citing independent product tests, four consumers seeking to represent a class have filed a lawsuit in California state court alleging that dozens of wineries in the state manufacture and sell wine that contains as much as five times the maximum safe daily limit of arsenic. Charles v. The Wine Grp., Inc., No. BC576061 (Cal. Super. Ct., Los Angeles Cty., filed March 19, 2015). “[J]ust a glass or two of these arsenic contaminated wines a day over time could result in dangerous arsenic toxicity to the consumer,” the complaint alleges. The plaintiffs apparently hired BeverageGrades, an independent laboratory in Colorado, to test for levels of inorganic arsenic, which is “substantially more toxic and dangerous to humans” than organic arsenic, the complaint says. Ingestion is reportedly linked to a variety of health issues, including nausea, vomiting, disturbances of the cardiovascular and nervous systems, and type 2 diabetes. The complaint asserts that in…
U.S. Sen. Charles Schumer (D-N.Y.) has introduced legislation that would ban the production, sale, distribution or possession of powdered alcohol. Schumer sponsored a similar initiative in 2014, and introduction of the new bill comes on the heels of the Alcohol and Tobacco Tax and Trade Bureau’s March 10, 2015, approval of four labels for flavored Palcohol® products manufactured by Lipsmark LLC. “I am in total disbelief that our federal government has approved such an obviously dangerous product, and so Congress must take matters into its own hands and make powdered alcohol illegal,” Schumer said. “Underage alcohol abuse is a growing epidemic with tragic consequences and powdered alcohol could exacerbate this. We simply can’t sit back and wait for powdered alcohol to hit store shelves across the country, potentially causing more alcohol-related hospitalizations and God forbid, deaths.” See Press Release of Sen. Charles Schumer, March 12, 2015; The Hill, March 13,…
A consumer has filed a putative class action against Jim Beam Brands Co. and its owner Beam Suntory Import Co. alleging that the label indicating that the bourbon whiskey is “handcrafted” is misleading because the bourbon is produced with machines. Welk v. Beam Suntory Import Co., No. 15-328 (U.S. Dist. Ct., filed February 17, 2015). The complaint asserts that videos, photos and diagrams on Jim Beam’s website show that its bourbon “is manufactured using mechanized and/or automated processes, resembling a modern day assembly line and involving little to no human supervision, assistance or involvement.” The handcrafted claim leads consumers to purchase Jim Beam Bourbon falsely believing it to be of superior quality, so they are willing to pay a premium price, the complaint argues. The plaintiff alleges misrepresentation and violations of California’s False Advertising Law and Unfair Competition Law, and he seeks class certification, an injunction, an order for Jim…
