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Tito’s bid to oust lawsuit dismissed

Tito’s Handmade Vodka has failed to end a labelling lawsuit against it after a California judge ruled that the TTB’s approval of the brand’s labels does not provide “safe harbour”.

Tito’s Handmade Vodka has been hit with a series of lawsuits over its use of the term “handmade”

Judge Jeffrey T. Miller refused to reject a proposed class action against Tito’s on the grounds of safe harbour during a hearing on Friday 20 November, reports Law360.

Safe harbour is a provision of law that states certain actions will be considered not to violate a given rule, usually in connection with a more vague, overall standard.

The lawsuit, filed by plaintiff Gary Hofmann is a proposed class action accusing brand-owner Fifth Generation Inc. of misleading consumers over the “fact” its Tito’s Handmade Vodka is made mostly with machines.

Hofmann said the firm’s claims cannot fall within California’s safe harbour simply because the US Alcohol and Tobacco Tax Bureau (TTB) approved its use of the word “handmade”.

He added that Janet Scalese, director of Fifth Generation’s advertising and labelling unit, said “labelling specialists” do not verify terms such as “handmade”.

Last month, Hofmann told Law360: “The TTB’s issuance of a COLA [Certificate of Label Approval] is not subject to notice and comment rulemaking or anything like it. Thus, the TTB’s approval of a given label – one of roughly 135,000 such approvals carried out by the TTB – is not the type of formal regulatory action sufficient to trigger the safe harbour.

“The TTB’s regulations are a floor on the regulation of alcohol beverage labelling, not a ceiling; thus, the TTB’s approval of a label does not mean that the label is ‘clearly permitted’ by law.”

Last week, Judge Miller said that the TTB’s COLA process is “insufficient” the grant Fifth Generation safe harbour protection, and thus end the proposed class action.

In September, a federal district judge dismissed five out of six lawsuits against Tito’s Handmade Vodka that accuse the brand of false advertising.

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