That’s quite the special whiskey you’ve got there. Handmade, small batch, artisanal and craft. The purest and the finest. All the best ingredients, made according to the original recipe. Must be good stuff.
Of course, it’s all bullshit. I mean, handmade? Exactly how does one make whiskey by hand? Artisanal? Craft? Who’s defining those ubiquitous terms? Who’s determining which whiskey is finer and purer than another? Who’s deciding what constitutes a “small” batch?
No one is, and no one is going to. What you’re reading on that bottle is known as puffery, and it’s perfectly legal. As adorable a word as you’ll find in a legal doctrine, puffery is the idea that marketing and advertising that exaggerates and even lies is okay, as long as your average consumer would recognize it for the BS that it is. If the claim you make is subjective, indefinable, outlandish, or impossible to prove, you’re probably good to go. I’ve yet to meet anyone who truly believes that the best part of waking up is Folgers in their cup, and I can’t be certain that a caveman could actually sign up for Geico, but that doesn’t make those slogans illegal.
Liquor peddlers have long been leaders in the field of puffery. Bourbon in particular, with its marketing emphasis on tradition, place, and authenticity, pushes the envelope of exaggeration. Brand new distilleries splash “old” and “ancient” across the label. A mash bill first composed five years ago finds a tenuous connection to a recipe from 1789. A multinational conglomerate buys a long-dormant brand named after some 19th-century distiller, sources some whiskey, and covers the label in references to that distiller’s vital importance to the art of distilling and this product’s fierce determination to honor his legacy. Anywhere you look in this business, they’re huffing and puffing.
In a few instances, booze puffery has ended up in court, and even helped shape the way American courts deal with marketing exaggeration. There’s a fun new book out called Bourbon Justice, which explores the impact of bourbon-related court cases on American jurisprudence.[i] In it, author and Louisville liquor lawyer Brian Haara describes two recent cases where the limits of whiskey puff were tested. The first, from 2004, involved Barton distillers, makers of Old Barton. In their effort to launch a new premium brand, Barton decided that one of their stills was now the “Legendary Ridgewood Still.” It had never been called that before, and there was nothing different or special about this still, but there it was: the new whiskey, called “Ridgewood Reserve”, was made on a legendary still. As part of a broader suit, another whiskey company alleged that this was misrepresentation to consumers. Barton defended itself by saying that the newly created legend was just puffery. Unfortunately, we’ll never know if this one crossed the line, because the case was decided on other grounds: the name, coupled with the bottle design, was pretty clearly copyright infringement on another bourbon, Woodford Reserve. When Barton was ordered to change the name, the “legendary still” disappeared with it.
The second case, from 2015, had to do with that word from back in the first paragraph, handmade. Two separate class action lawsuits, in different states, were brought against Makers Mark for use of this word. As the complainants in one of the cases point out, Makers goes well beyond slipping “handmade” into a list of fancy-sounding adjectives. It makes a big deal out of it:
“The term “Handmade” is prominently placed on said labels in bold font on the front of the bottle, and twice more on the side of the label. The words, “Maker’s Mark is America’s only handmade bourbon whisky – never mass produced,” and “[w]e’re proud of our unique and full-flavored handmade bourbon,” may further be found on the side of the labels.”[ii]
In both cases, no dice: the judges ruled that a reasonable consumer simply could not believe that Makers was actually made by hand. It was ridiculous, so it was just puffery, no matter how intensely they pushed the narrative.
Puffery remains an evolving legal concept. Companies and courts are still toying with where the line between puffing and false advertising lies. I’ve focused mostly on whiskey here, but no spirit is safe. Heck, vodka, with all its “smoothness” talk, might be worse. Wine does it too, as does beer, and literally any product out there. Everything is lying. It’s on us to prove ourselves worthy of those judges’ opinions of our intelligence, and figure it out.[iii]
[i] Haara, Brian F. “Bourbon Justice: How Whiskey Law Shaped America.” Potomac Books, an imprint of the University of Nebraska Press: 2018. See Chapter 6.
[ii] Salters v. Beam Suntory, Inc. Case No. 4:14-CV-00659-RH-CAS. Complaint (filed 12/11/14) pp. 3-4. Accessed through PACER 3/21/2019