Tito’s False Ad Suit to Continue
A New York federal court has denied Fifth Generation, Inc.’s motion to dismiss a lawsuit arguing that its Tito’s Handmade Vodka® is falsely advertised as handmade because machines are used in the process of manufacturing the product. Singleton v. Fifth Generation, Inc., No. 15-0474 (N.D.N.Y., order entered January 12, 2016).
The court rejected the company’s claim that its adherence to U.S. Alcohol and Tobacco Tax and Trade Bureau standards does not relieve it from liability for false advertising claims. Further, the court found that “Tito’s labels could plausibly mislead a reasonable consumer to believe that its vodka is made in a hands-on, small-batch process, when it is allegedly mass-produced in a highly-automated one.” Accordingly, the court allowed several claims to continue, but dismissed allegations of breach of express warranties and negligent misrepresentation.
The decision echoes a November 2015 ruling from a California federal court, which also refused to find that the safe harbor provision excused Fifth Generation from liability. Hofmann v. Fifth Generation, No. 14-2569 (S.D. Cal., order entered November 20, 2015).
Issue 590
