Bourbon Distillers File Motion to Dismiss Deceptive Advertising and Labelling Lawsuit Over 8-Year vs. 8-Season Aging Row

How many whiskey brands advertise on their labeling with numbers that indicate the seasons the product was aged and not the years?  At least one.  Previously, Food and Beverage Legal . News covered a dispute over false advertising and misleading labeling allegations brought as a class action by a purchaser of Old Charter arguing that the company had purposefully altered its labels and its product packaging in a misleading fashion changing the labels that purported that the product was aged for 8 years to (fully TTB approved) labels asserting only that the product was matured for 8 “seasons” (with four seasons to a year, that’s 2 years instead of 8).  You can find the complaint here.  The suit is brought against Old Charter, Buffalo Trace and Sazerac as related entities.

Here is the picture we posted of the labels from that complaint:

As part of our promise to cover the matter as it unfolds – you can find the memorandum in support of the motion to dismiss here.  In the motion to dismiss, in addition to other arguments, the companies argue that:

1. The labels are not deceptive because they say specifically that the product was “matured for eight seasons.”
2. Because bourbon aging is a federally controlled issue and the distiller received federal approval on the labels, safe harbor exceptions under New York’s general business laws apply.
3. Using the number 8 and “eight seasons” on a bottle does not create a statement or promise that the bourbon is aged for 8 years.
4. The fraud assertions, that the labels were deceptively reconfigured and the product changed to give a misimpression about the age of the bourbon, aren’t sufficient.
5. The suit doesn’t actually allege any injuries against Sazerac, Inc., just the other two bourbon makers.

Interestingly, in addressing the change from 8 years to 8 seasons, the brief states:

Defendant Buffalo Trace Distillery, Inc. (“Buffalo Trace”) produces a number of different spirits, primarily different whisky brands. Old Charter is one such brand that Buffalo Trace makes while doing business as Old Charter Distillery Co. Old Charter bourbon has been produced in a number of forms over the years. For example, Buffalo Trace previously produced and labeled Old Charter bourbon according to the number of years for which it was aged, whether it was 8 years, 10 years, or 12 years. As part of this, the TTB approved a label stating Old Charter is “gently matured for eight seasons in century old brick warehouses.  …

More recently, however, to produce bourbon with the most dependably consistent flavor profile, Buffalo Trace did away with the strictures of pre-set age criteria. Instead of bottling the bourbon after a set age point, Buffalo Trace bottles and distributes Old Charter bourbon once it reaches the proper flavor point associated with the Old Charter brand—whether it is aged for, e.g., 7 years, 8 years, 9 years, or some point in between. This improved approach allows Buffalo Trace to bottle Old Charter bourbon when it hits the right flavor profile, not when it hits an arbitrary pre-set age. …

The taste of bourbon is determined by a number of factors; it is not solely dependent on age. For example, the quality of the grain mixture, the wood of the barrel, and the temperature of where the bourbon is aged matter.

Obviously, these statements lead to a few questions .. had the number 8 become so associated with the branding that it made sense to leave it there?  How many whiskey brands advertise their age in the number of “seasons”?  Is this an industry trend we can expect to grow?

Hopefully there will be some clarity provided in the upcoming briefing.