Andrew Thomason Oct. 14, 2014, 10:14am

Editor's note: This story has been updated to correct references to the defendant to Fifth Dimension. We previously listed the defendant as Fifth Generation, which is the maker of the vodka at issue, but the suit lists Fifth Dimension as the defendant.

A Texas-based distillery is facing a lawsuit with the potential to cause it a more than $5 million hangover for using allegedly false claims to market its vodka.

Mario Aliano and Due Fratelli Inc., a business involved in selling liquor, filed a class action lawsuit Oct. 7 in Cook County Circuit Court against Fifth Dimension Inc., a Texas company that makes and distributes Tito’s Handmade Vodka.

They are being represented by Chicago attorneys Thomas A. Zimmerman Jr., Adam M. Tamburelli and Frank Stretz of Zimmerman Law Offices P.C.

Tito’s Handmade Vodka was started by Bert Butler “Tito” Beveridge in 1997. At that time,  Beveridge was making small batch vodka in a 16-gallon pot still, an icon of which dons the company's vodka bottles. Pot stills are an old technology and resemble equipment used by moonshiners.

The marketing surrounding the vodka plays up the idea of Tito’s being a handmade, small-batch liquor, but that marketing is completely false, the recently-filed suit asserts.

The plaintiffs claim Tito’s is now made on a 26-acre facility that uses 10 industrial stills. The plant is capable of producing 500 cases of vodka an hour, or 850,000 cases per year, and trade distillation organizations consider 40,000 cases per year the cutoff for micro-distilleries.

They further allege that the defendant uses false claims about its artisanal nature to charge more for its product that what consumers would otherwise pay.

“Defendant knows that Plaintiffs and other consumers and businesses believe they are paying costs associated with a high-quality, small-scale production process when they purchase Tito’s … Had they known that Defendant’s misrepresentations regarding Tito’s were false, they would have not purchased Tito’s,” the suit states.

Plaintiffs claim Fifth Dimension’s actions violates Texas, Illinois and federal laws governing deceptive trade practices and are asking for compensatory damages for themselves and a proposed class that amount to more than $5 million.

This lawsuit marks the latest in growing number of complaints over Tito’s branding and marketing.  The Cook County complaint echoes lawsuits filed in a California court and a Florida federal court.

In both of those cases, the plaintiffs claim the vodka's marketing is false and misleading, causing customers to pay premium prices for a mundane product.

Fifth Dimension and Beveridge have taken the stance in the California case that the US Alcohol and Tobacco Tax and Trade Bureau (TTB) has reviewed and approved its label, which states the vodka is “handmade” and “Crafted in an Old Fashioned Pot Still by America’s Original Microdistillery.”

“After sending a field agent to Austin to review our processes, the TTB has approved our use of ‘Handmade’ on our label. We think our pot still batch distillation process is one of the key things that differentiates us from a great majority of other vodkas. We disagree with these claims and will defend ourselves against this misguided attack,” Beveridge said  in a Sept. 23 Shanken News Daily article.

Tito’s isn't the only spirit facing a lawsuit about the veracity of its artisanal production claims.

Templeton Rye Spirits, makers of Templeton Rye whiskey, is being sued over claims its whiskey is produced in small batches in the town of Templeton, Iowa, even though it is actually produced and aged in Indiana by a large third-party company.

The only part of the process done in Iowa is the bottling, according to lawsuit that the defendant removed late last month from Cook County Circuit Court to federal court.

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