In December 2014, Maker’s Mark was hit with a putative class action lawsuit challenging its use of the claim “Handmade.” According to the complaint, Maker’s Mark Whisky’s manufacturing process uses a mechanized and/or automated process with little to no human supervision, assistance, or involvement. If the whiskey was originally “handmade,” does the subsequent mechanization cause the original product to no longer be “handmade”? For that matter, what does “handmade” mean? Does it have value as a marketing term? Maker’s Mark is not the first company to have its “handmade” claims challenged, and according to the lawsuits, products labeled as “handmade” sell for a premium. Thus, could “handmade” claims be the next target for significant class action litigation?
The allegations in the complaint are analogous to those involving cosmetics suits over other marketing claims such as “organic,” “natural,” and “unscented” claims. In particular, there is no formalized legal standard for these claims for cosmetics. Instead, the plaintiffs allege their subjective beliefs of what a reasonable consumer may believe these claims to mean.
Interestingly, while in some “natural” cases, companies have been successful defending their “natural” claims by pointing to information contained on their websites which explain what they mean by “natural”; in the Marker’s Mark case, the plaintiffs rely heavily on a “Tour Video” available on the company’s website to support their false advertising claims. The complaint also includes a number of images purportedly taken from the “Tour Video.”
The Maker’s Mark false labeling class action lawsuit is Safora Nowrouzi, et al. v. Maker’s Mark Distillery Inc., Case No. 3:14-cv-02885, in the U.S. District Court for the Southern District of California
Takeaway…whether a cosmetics company uses “handmade,” “handcrafted,” “small batch,” “artisan made,” etc., it is wise to take a step back to evaluate whether the companies’ website supports the claims made, whether the processes used reasonable relate to the claims made, and that they have substantiation for the claims.
Cosmetics & The Law 