Proving that a false advertising claim can be thrown out on a motion to dismiss (despite recent cases in California indicating the contrary), a Florida federal judge tossed false advertising claims brought against Maker’s Mark Distillery, Inc., determining that consumers could not possibly interpret the phrase “handmade” – used to market the company’s bourbon whiskey – to mean the product was made “predominantly by hand.”
Plaintiffs filed their complaint in December 2014, alleging there was nothing “handmade” about the bourbon whisky “under any definition of the term.” Plaintiffs argued the advertising was deceptive because the bourbon was made “via a highly-mechanized process” that was “devoid of human hands.” Based on the allegations, the plaintiffs sought to enjoin Maker’s Mark from using the term “handmade,” as well as recovery of compensatory and punitive damages.
However, United States District Court Judge Robert L. Hinkle said that this claim simply did not hold water. Chief among his criticisms was the fact that plaintiffs had themselves been unable to articulate an exact definition of the term “handmade,” indicating that it was open to many different interpretations. The very nature of Maker’s Mark bourbon whiskey – a widely marketed product made in high volumes – meant that consumers could not reasonably believe it was made by hand.
While the decision makes a passing nod that whether a statement is false or misleading is ordinarily a question of fact for the jury, Judge Hinkle goes on to assess its falsity, considering facts provided by Maker’s Mark to conclude that many of the varying definitions of “handmade” proposed by plaintiffs are actually met by the manufacturer. This approach is at odds with the reticence of many other courts, particularly in the Ninth Circuit, to refuse to examine whether factual statements are truly false at the motion to dismiss stage.
At the end of the day, Judge Hinkle resoundingly concludes that, as a matter of law, “no reasonable person would understand ‘handmade’ [in the context of mass-produced liquor] to mean substantial equipment was not used” and dismissed the action with prejudice.
The willingness to engage in a common sense inquiry regarding how a reasonable consumer interprets something at the pleading stage is heartening, and we can hope that similar reasoning is employed more frequently in California courts, where the bulk of these false advertising cases are filed. Although the reasoning is focused squarely on “handmade” claims, it can easily be applied to many of the “All Natural” cases currently being filed – as in, how could any consumer believe that a manufactured medicine or processed food is really “natural” in any sense of the word? Similar reasoning may also force plaintiffs to commit to a definition of what they contend a challenged representation means to the reasonable consumer, which could make shooting down such interpretations easier in the early stages of litigation.
