Judge: Consumers ‘could be misled’ by Tito’s

A New York federal judge has refused to throw out a proposed class action that claims the Tito’s Handmade Vodka label could lead consumers to believe the product is created in small batches.

Tito’s Handmade Vodka producer Fifth Generation has been hit by a number of class actions over its label claims

US district judge Brenda K Sannes said in the 12 January hearing that “a reasonable consumer could be misled by the label”, reports Law360.

Fifth Generation argued that it uses old-fashioned stills, instead of modern column stills, and its labour-intensive production process is what makes its vodka ‘handmade’. However the judge said that those facts aren’t on the labels and therefore aren’t proper before the court.

The proposed class action is being sought by vodka drinker Trevor Singleton, who has claimed actual injury by alleging that he paid a premium price for the vodka having been misled.

Judge Sannes also rejected an argument from Tito’s producer Fifth Generation that approval by US Alcohol and Tobacco Tax and Trade Bureau (TTB) creates a ‘safe harbour’, barring Singleton’s claims.

It is unclear whether or not the TTB ruled that the label complies with regulations under state law, or if the bureau ruled on claims that the vodka is “handmade” or produced in an “old-fashioned pot still”, Judge Sannes said.

“Moreover, the certificate of label approval application form states that the issuance of a certificate does not relieve defendant from liability for violations of the Federal Alcohol Administrative Act, which itself prohibits false and misleading labelling, suggesting that TTB approval is not intended to carry preemptive weight,” ruled the judge.

The decision echoes that of Californian judge Jeffrey T. Miller, who concluded in October 2015 that the TTB’s approval of the brand does not create a ‘safe harbour’.

However in September 2015 Florida-based US district judge Robert Hinkle ruled largely in favour of Fifth Generation, dismissing five out of six lawsuits against Tito’s Handmade Vodka.

In that hearing, Judge Hinkle referred to the Oxford English Dictionary’s definition of “handmade” and asserted it could not be used to literally describe vodka.

“One can knit a sweater by hand, but one cannot make vodka by hand,” the judge added. “Or at least, one cannot make vodka by hand at the volume required for a nationally marketed brand like Tito’s. No reasonable consumer could believe otherwise.”