Widow Jane Distilleries sells Widow Jane bourbon, which is distilled in Kentucky, using water from Kentucky.  After the bourbon arrives in New York for bottling, some limestone mineral water -- from a location in New York near the Widow Jane Mine -- is added to the product.  

The label of the bourbon (which is shown below) identifies the product as "Kentucky Bourbon Whisky Aged 7 Years in American Oak."  Further down, the label says, "Pure Limestone Mineral Water From the Widow Jane Mine - Rosendale, NY." 

After the plaintiff bought a bottle of the bourbon back in 2018 for about $85, he brought various claims under New York law, alleging that the label is misleading because it falsely communicates that Widow Jane bourbon is distilled in New York using water from the Widow Jane Mine.  

What law applies here?  Section 349 of New York's General Business Law prohibits "deceptive acts or practices in the conduct of any business."  Section 350 prohibits "false advertising."  In order to state a claim under either law, the plaintiff must prove that "the deceptive conduct was likely to mislead a reasonable consumer acting reasonably under the circumstances."  In addition, the plaintiff must prove that the advertising was misleading in a "material" way. 

The United States District Court for the Southern District of New York dismissed the case, holding that a reasonable consumer would not be misled by Widow Jane's labeling.  Here's why.

First, the court didn't buy the argument that the label communicated that the bourbon was distilled in New York.  Because the label says that the product is "Kentucky Bourbon Whiskey," the court said that this theory was "belied by the text of the labels." 

Second, the court also didn't think that the labels communicated that the bourbon was distilled using water from New York.  Emphasizing that not only was the product labeled, "Kentucky Bourbon Whiskey," the court wrote, "Nowhere did the label assert that such water was used in the distillation of Widow Jane."  

Finally, the court was not at all troubled by the fact that the New York water didn't actually come from the Widow Jane Mine -- even though the label says that it actually contains "Water From the Widow Jane Mine."  While the court agreed that the wording was misleading, the court held that the label was not misleading in a material way.  The court wrote, "The Complaint contains no allegations that explain why a reasonable consumer would consider it material that the limestone water came from within the Widow Jane Mine boundaries rather than from a nearby source"  

While Widow Jane Distilleries may be able to toast its victory here, this decision may very well lead advertising lawyers to feel like they need a drink.  Here are some things that I was thinking about last night as I added rocks to my drink. 

Advertisers are generally responsible for the express and implied claims that are reasonably conveyed by the advertising.  When you've got an ambiguous message, there's always a chance that consumers will interpret your advertising in more than one way.  When there's a concern that advertising may be subject to an unintended interpretation, consider whether you can revise your claims to clarify what the intended message is.  Whether or not you agree with the court's decision on whether the label communicated confusing messages about where the product was distilled, and what type of water was used, if the labeling here had said "Distilled in Kentucky with water from Kentucky," it's a lot less likely there would have been a lawsuit in the first place.

And what about the freestanding statement, "Pure Limestone Mineral Water From the Widow Jane Mine - Rosendale, NY"?  Does that communicate that the bourbon was distilled using this water?  Does it suggest that this is the only type of water that was used?  Or does it just suggest that it's one of the ingredients that is in the product?  While the court sided with Widow Jane here, this type of claim -- that a reference to a particular ingredient misleads consumers about how that ingredient is incorporated into the product -- is common.  And courts come out differently.  (Check out, for example, my post about the lawsuit over the "whole grain" in Cheez-It crackers, which, coincidentally, go very well with whisky.)  If you're highlighting a specific ingredient that your product contains, it's always going to be safer to explain what role that ingredient plays in the product.  Another court could have easily looked at the reference to limestone mineral water here and said that it was reasonable to believe that it communicated that the bourbon was distilled using that water. 

Finally, this is one of the rare cases where a court acknowledges that a claim is misleading, but decides that it is not actionable because the claim is not materially misleading.  The court's rationale here was that, essentially, why would it matter to consumers whether the water came from the mine or somewhere nearby?  This kind of an argument is often an uphill battle -- particularly when you're affirmatively telling consumers that this is an important feature of the product.  As the FTC says, "the Commission presumes that express claims are material."