In a recent post on TheTMCA.com, we discussed how a California court held that the phrase “artfully crafted” was not a false or misleading description of the popular Blue Moon microbrew. It turns out that a federal court in the Buckeye State dealt a swift blow to similarly-crafted claims against the Texas-based maker of Tito’s Vodka. In Terlesky v. Fifth Dimension, the plaintiff was purportedly driven to purchase Tito’s Vodka for years because the label proudly proclaimed it was a “Handmade” product and “Crafted in an Old Fashion Pot Still by American’s Original Microdistillery.” It turns out that Plaintiff was apparently shocked—shocked!—to discover that Tito had not personally handmade all the constituent elements of the spirit. (Apparently, consumers in California and Florida have also allegedly been duped by Tito’s Texas-sized claims).
Accordingly, Plaintiff initiated a federal class action suit on her behalf and behalf of all of her vodka-drinking comrades in Ohio. She alleged several claims and violations of Ohio law, including the Ohio Deceptive Trade Practices Act, the Ohio Consumer Sales Practices Act, Promissory Estoppel, Negligent Misrepresentation, and Fraud. With the exception of promissory estoppel, all of these claims were dismissed without leave to amend.
On the sole remaining claim for estoppel, it is difficult to see how the vodka-aficionado Plaintiff ultimately survives. Under Ohio law, promissory estoppel requires: (1) a clear, unambiguous promise; (2) reliance upon the promise by the person to whom the promise is made; (3) the reliance is reasonable and foreseeable; and (4) the person claiming reliance is injured as a result of reliance on the promise. Tito’s representations seem inherently susceptible to multiple understandings and meanings—not exactly unambiguous promises. And, given that Plaintiff alleged in her complaint that she “purchased Tito’s Handmade Vodka once every month for the past several years,” it is hard to see how she is “damaged.” Certainly Tito will claim that he had no hand in that.
