Monthly Archives: October 2014

UPDATE: Hershey’s Settles Lawsuit Against Marijuana Company

I previously wrote about Hershey’s trademark lawsuit against pot-infused candy makers in Colorado.  The parties have now settled the lawsuit (the outcome of which was never really in doubt).  The Denver Post reports as follows:

In a settlement penned in late September, TinctureBelle agreed to recall and destroy all edibles it sold that looked like the famed chocolate company’s products, or with names that played on their brands.

Although the edibles company said it had stopped making products that appeared like those produced by Hershey — including well-known names such as Reese’s, Almond Joy and Heath — long before the federal lawsuit was filed in June in U.S. District Court in Denver, the settlement makes sure it won’t happen again.

See more details here.

Tito’s Vodka Faces Two Class Action Lawsuits Claiming That it is Not “Handmade”

Titos-from-ComplaintLast week, I wrote about the putative class action lawsuit filed in Illinois against Templeton Rye alleging that its advertising was false and deceptive with respect to the claims that it is “Made in Iowa” and uses a unique, Prohibition-era recipe.

A similar lawsuit was filed at approximately the same time in California state court against Fifth Generation, Inc., parent company of Tito’s Handmade Vodka.   Now, another lawsuit has been filed against Tito’s in the U.S. District Court for the Northern District of Florida.   See the new complaint here.

The allegations in the new federal lawsuit echo the same complaints from the state court action.  Specifically, plaintiffs allege that Tito’s labels claim that the product is “Handmade” and “Crafted in an Old Fashioned Pot Still by America’s Original Microdistillery” but:

[o]n information and belief, the vodka was made, manufactured and/or produced in “massive buildings containing then floor-to-ceiling stills and bottling 500 cases an hour” using automated machinery that is the antithesis of “handmade” that is in direct contradiction to both the “Handmade” representation and the “Crafted in an Old Fashioned Pot Still” representation on the product.

As a basis for establishing damages, plaintiffs further allege that “[c]onsumers generally believe that ‘handmade’ products are of higher quality than their non-handmade counterparts, and are produced in small batches by hand” and that this caused “members of the general public” to purchase the vodka “at inflated prices.”  Plaintiffs assert claims under Florida’s consumer protection and false advertising statutes as well as claims for breach of warranty, negligence and unjust enrichment.

In response to the same allegations in the California lawsuit, Tito’s issued a statement which stated, among other things:

We distill at the same distillery in Austin, Texas where I, Tito, started the business in 1995, distilling in batches in pot stills that are customized and hand-built on-site to our proprietary specifications.

We hand-connect the hoses and pumps as we taste and qualify the next steps with the distillate. We taste our product to ensure head and tail cuts, all of which are done at our distillery in Austin, are made to our exacting standards to deliver the highest quality.

The artistry involved in knowing when it’s time to make those cuts is something that cannot be duplicated by even the most sophisticated machines.

Tito’s has also noted that the US Alcohol and Tobacco Tax and Trade Bureau (TTB) approved the brand’s label and that Tito’s “small-batch distillation process” differentiates it from other vodka brands.

For the plaintiffs, it will be difficult to establish what constitutes “handmade” and, similarly, show that this term isn’t tantamount to mere “puffery” such as “premium” or “best” that cannot, as a matter of law, be reasonably relied upon by consumers.  As for Tito’s, it likely cannot rely on TTB approval of its label as a defense since the TTB approval process does not focus on the truth or falsity of such terms.