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Bourbon Marketers Write the Book on Puffery and Exaggeration

Simplex commendation non obligat is a maxim meaning, roughly, “simple commendations do not create obligations,” and in the mid-1800s English courts ruled that such advertising “puff” could not lead to liability.1 While the origin of the law of “puffery” was not rooted in bourbon lawsuits, it fits right into a proud tradition of bourbon marketing.

Essentially, puffing, or puffery, is an exaggerated or boastful advertising statement that requires no substantiation. It is a type of advertising that is more “blustering and boasting which no reasonable buyer would believe was true” and therefore is not actionable.2 Puffing can be seen as sanctioned lying, as long as the lie is relatively nonspecific and so exaggerated that no reasonable consumer would be wrongly influenced. Courts will also consider whether the advertising statement can be measured objectively. If it can be measured (like “voted the best bourbon in America”) and if it is false, then the statement may cross the line into false advertising.

Generally speaking, courts hold that vague or subjective statements—ones that cannot be measured or proved false—are mere puffing instead of false advertising. Bourbon marketing history is filled to the brim with puffery, and occasionally courts have addressed whether or not puffery has crossed the line into false labeling. One of those cases involved the rush of brands seeking a foothold in the “super premium” market and the brand currently known simply as “1792 Small Batch,” produced by Barton Distillery. The original brand name was Ridgewood Reserve, and Brown-Forman alleged that it infringed on its Woodford Reserve brand name, logo, trademarked label design, and flask-shaped bottle. The case took a turn into cross-allegations of misrepresentations to consumers, with Barton’s alleged misrepresentation being that it lied to create a “legend” out of thin air.

In Brown-Forman Corp. v. Barton Inc. the evidence showed that the marketers for Barton decided that the best way for Barton to launch a new premium brand would be by “tying the product to geographic locations, historical figures or to bourbon history.”3 Since the word Ridgewood had no true meaning, the marketers “named” the existing still at the Barton Distillery the “Legendary Ridgewood Still.”4 Overnight the still became “legendary” and had a name, but it was a farce used to legitimize the Ridgewood Reserve name.5 As part of its defense, Barton argued that calling the still legendary was mere puffery and that it could not be subject to any misrepresentation claims because of it.6 The consumer misrepresentation claims were ultimately dropped by both parties, and Barton was forced to change the Ridgewood Reserve name on trademark infringement grounds.7

Another example of puffing is use of a word found on many bourbon labels: handmade. In the modern era there have always been steps in the bourbon-making process that have been done by machine. Indeed, as early as 1905, writers were lamenting that “‘old fashioned hand-made sour mash whisky’ will soon be a thing of the past” because of modern machinery: “The world over, Kentucky is famous for beautiful women, for fine horses, and for good whisky. And when Kentucky whisky is mentioned, it means Bourbon whisky. In the year 1902 to 1903, America produced a little over 26,000,000 gallons of Bourbon whisky, and of these 24,759,890 gallons were made in Kentucky. Pennsylvania and Maryland, Rye; but Kentucky, Bourbon. . . . The ‘old fashioned hand-made sour mash whisky’ will soon be a thing of the past. Modern machinery has largely supplanted the old-time mashing by hand, and large mashing tubs and fermenters the small one-bushel tubs.”8

Now more than ever—and especially in distilleries that are more industrial than bucolic—bourbon may be fairly characterized as being “manufactured” in a highly mechanized and computerized process. Because of this mechanization, plaintiffs in California and Florida filed class action complaints against Maker’s Mark in 2014 alleging that its use of the term handmade was false and misleading.

Maker’s Mark was successful in having both cases dismissed, first the Florida case in May 2015. The court in Salters v. Beam Suntory, Inc. noted that there are different possible meanings for the word handmade: “The term ‘handmade’ goes back many years.9 The original meaning was ‘distinguished from the work of nature.’”10 “In that sense all bourbon is handmade; bourbon, unlike coffee or orange juice, cannot be grown in the wild.”11 However, the court recognized that this particular usage of the word handmade is no longer common. Instead, the current definition of handmade is “made by hand.”12 That circular definition cannot literally describe how bourbon is made, since machines are involved in most steps along the way. As the court noted: “One can knit a sweater by hand, but one cannot make bourbon by hand. . . . No reasonable consumer could believe otherwise.”13

Because no reasonable consumer could believe otherwise, the Florida plaintiffs tried to offer other possible meanings of handmade to create some sort of misrepresentation by Maker’s Mark. For example, the plaintiffs argued that handmade means being “made from scratch or in small units,” that it “implies close attention by a human being, not a high-volume, untended process,” or that it suggests being “made with only some kinds of machines, not others . . . [such as] machines that are too big or too modern.”14 The court scoffed at these attempts too. If not taken literally—which it cannot be—then saying something is “handmade” is a general, undefined statement that is not actionable because it is puffery.15

A few months later a federal court in California issued a similar ruling.16 The plaintiffs in Nowrouzi v. Maker’s Mark Distillery, Inc. alleged that they bought Maker’s Mark because the label contained the statement that it was handmade, allegedly leading them to believe that Maker’s Mark “‘was of superior quality’ than other bourbon thus justifying spending more for defendant’s product than other lesser quality products.”17 They alleged that they were misled because Maker’s Mark’s process “involves ‘little to no human supervision, assistance or involvement’ . . . [which is] ‘mechanized and/or automated,’” contrary to the meaning of handmade, which “is defined in the Meridian [sic] Webster dictionary as ‘created by hand process rather than a machine.’”18

Maker’s Mark’s first argument was that California law protected it from liability because the Alcohol and Tobacco Tax and Trade Bureau had approved its label.19 In other words, Maker’s Mark argued that, because it had complied with the federal regulations in the labeling process, because TTB is the federal agency charged with promulgating regulations regarding labeling of distilled spirits and other alcoholic beverages pursuant to the Federal Alcohol Administration Act (FAAA), and because TTB reviews and preapproves distilled spirits labels to ensure compliance with applicable laws (including whether the label is false or misleading), Maker’s Mark should not be subject to liability for a consumer’s claim related to labeling.20

Maker’s Mark compared the label approval process to prescription drug labeling by the Food and Drug Administration (FDA) and food labeling by the U.S. Department of Agriculture (USDA), for which consumer claims based on labels are dismissed routinely in cases in which the federal regulatory agencies had approved the labels.21 The court disagreed, however, because the TTB’s approval of labels is an informal agency decision, unlike the stringent investigatory process used by the USDA and the FDA.22 At the very least there was no proof that TTB had specifically investigated the “handmade” claim on the label, so the court had insufficient evidence to support a dismissal.23

While TTB approval may not necessarily give a producer license to put whatever it wants on a label, courts will still analyze whether label statements really cause a likelihood of deception among members of the public. “Likely to be deceived” means “more than a mere possibility of misunderstanding—‘likelihood’ is measured in terms of whether a significant portion of the general consumer public could be misled.”24 Maker’s Mark argued that using handmade could not be misleading because it is not a “specific and measurable claim.”25 Rather than a factual representation, it is a general, subjective term that cannot be measured; in other words, using the word handmade is puffery.26

Handmade cannot mean that “Maker’s Mark employees break up the grain with their hands, stir the mixture by hand, distill and ferment the alcohol without the use of any machine, make . . . glass bottles by hand, fill each bottle by hand, and handwrite the labels on the bottles.”27 The federal court in California agreed with the earlier decision by the federal court in Florida on the issue of puffery: “This Court finds that ‘handmade’ cannot reasonably be interpreted as meaning literally by hand nor that a reasonable consumer would understand the term to mean no equipment or automated process was used to manufacture the whisky.”28 Handmade is puffery, and puffery is allowed.

While these cases might encourage bourbon producers to engage in more puffery, other bourbon lawsuits show the downside to puffery, exaggeration, and tall tales. W. A. Gaines & Company learned this lesson the hard way, at just about the same time that it was learning hard lessons about its Old Crow brand. Gaines had another prominent brand in the late 1800s and early 1900s called “Hermitage.” When faced with an imposter brand in California, Gaines sued, alleging that the competitor sold “a cheap imitation and inferior grade of whisky, in barrels which are labeled with false and misleading labels, having printed thereon the title ‘Hermitage Whisky.’”29 The court dismissed Gaines’s complaint, however, because Gaines was not specific enough in its allegations.

Fig. 16. Hermitage label script. W. A. Gaines & Co. v. Turner-Looker Co., 1913.

Now, over one hundred years later, only speculation can provide reasons why Gaines failed to be more specific, but a second historical Hermitage case might provide the answer. In W. A. Gaines & Co. v. Turner-Looker Co. Gaines alleged with specificity both its own label usage and trademark of Hermitage and Turner-Looker’s use of a name obviously similar to Gaines’s trademarked name. Turner-Looker used the name Golden Heritage, which, standing alone, might not have seemed problematic. The problem arose from the similar font and style used by Turner-Looker. When comparing Gaines’s trademarked name to Turner-Looker’s similar name, all odds must have seemed to favor Gaines (figs. 16 and 17).30

Indeed, the court recognized that “the similarity in appearance is obvious.”31 Moreover, the court concluded that Turner-Looker’s trade name “is calculated to deceive the public, and to enable the palming off of [its] goods as those of [Gaines].”32 Even though the two brands had readily apparent differences—such as Hermitage being labeled “Kentucky Straight Bourbon Whisky,” whereas Golden Heritage was labeled “Straight Pennsylvania Whisky”—only “careful observers” would note those differences, and most consumers would be deceived.33

Fig. 17. Golden Heritage label script. W. A. Gaines & Co. v. Turner-Looker Co., 1913.

However, Gaines might have alleged too much when it provided details of its Hermitage label, and in doing so, it gave Turner-Looker a defense. The Hermitage label, it turns out, contained an exaggeration or a dated reference to a bygone method, which came back to haunt Gaines because of the legal doctrine of “unclean hands.” Specifically, Gaines stated on its label that Hermitage was manufactured “in the sour mash fire copper way, being singled and doubled in copper stills over open wood fires.”34 Unlike a statement that constitutes subjective or immeasurable puffery, this was an objective and measurable statement. Moreover, at the time, noted the court, many consumers believed that “the open fire process is superior,” but Gaines actually performed the first boiling by steam heat, and the second boiling was performed through the use of a closed furnace.35 These misstatements were not merely “small survivals from a time when they were literally true” but, instead, were material enough to invoke the rule of unclean hands.36

Essentially, under the unclean hands doctrine a claimant who has acted wrongly, or in bad faith with regard to the claim, cannot expect equitable relief (like an injunction) from a court. This is the same rationale that guided Chief Judge Taft’s decision in Krauss v. Jos. R. Peebles’ Sons Co. and which guided Barton’s defense in Brown-Forman Corp. v. Barton Inc.37 Equity is a matter of fairness, and because Gaines had not acted fairly, it could not enjoin Turner-Looker’s use of an obviously similar brand name.

Historically, bourbon labels and advertising have told all kinds of tall tales and included puffery. Can bottom-shelf brands really call themselves “rare,” “finest,” or “very old” when they are probably none of those things? Was James E. Pepper 1776 really “born with the Republic” in 1776, long before the Pepper family started distilling in Woodford County, Kentucky? Is it verifiable that Baptist minister Elijah Craig was the “father of bourbon” and the first to use charred oak barrels? Are brands really made pursuant to the same methods and original recipe since the 1800s? These are all examples of legend and puffery that bourbon consumers have come to know and simply let slide past, just like the bombardment of puffery in all other advertising that has become an American tradition.