“HANDMADE” OR “MADE BY HAND”: ASSESSING ALCOHOL LABELING PRACTICES AND EVALUATING A POPULAR CONSUMER CLASS ACTION

Note Written By: Hannah Simms

The total number of bourbon barrels in the state of Kentucky surpassed 5.6 million in 2014 – greater than the entire human population (4.4 million) of the Bluegrass State. A number of those barrels will eventually be bottled as one of the most iconic and recognizable bourbons produced in Kentucky – Maker’s Mark. Distilled in Loretto, Kentucky, Maker’s Mark credits its unique product to the four fundamental elements of water, wheat, wood and wax. While the average bourbon drinker may not be able to identify Maker’s Mark bourbon based on the taste alone, they are certain to recognize the familiar bottle with red wax dripping down the neck and die-cut labels affixed to the sides. It was the language used on these Maker’s Mark bottles that landed the distillery in a Florida courtroom in May of 2015. The makers of this popular Kentucky bourbon are not the only alcohol manufacturer that has found itself embroiled in a labeling controversy in recent years.

This note will describe the most common cause of action pled by consumers in this particular kind of class action and will detail a number of cases to highlight the major inconsistencies plaguing court decisions. After discussing the relevant law for the safe harbor and reasonable consumer authority splits, this note will posit that while most of these cases should survive a motion to dismiss based on the reasonable consumer standard, courts should be giving more deference to label approvals and applying safe harbor provisions of state deceptive and unfair practice acts. This will help insulate liquor manufacturers from liability to consumers as a result of using an approved label. This note will conclude with suggesting a few actions that the Tax and Trade Bureau (“TTB”), responsible for promulgating alcohol regulations, could take to alleviate the harm to liquor manufacturers that comes from defending these class actions.

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