Who Is "First"? Bourbon, Bragging Rights and the Burden of Proof

What does it mean to be the "first" at something? A dispute between two bourbon companies – each owned by African Americans and each claiming to be the first of its kind – illustrates that this question, at least in the competitive world of Kentucky bourbon, can have multiple answers. A recent Sixth Circuit decision that can be summarized as answering "first is first" with "it depends what you mean" serves as a reminder of the importance in false advertising law of the distinction between claims that are literally false and those that are, at most, misleading.

Brough Brothers and Fresh Bourbon are each brands of bourbon made in Kentucky. Brough Brothers began as an importer and exporter of alcoholic beverages but decided to begin producing bourbon in 2018. It began by developing a flavor profile and leasing a building in Louisville to use as its distillery. It filled its first barrel of Kentucky bourbon on New Year's Eve 2020; earlier that year, it sold bourbon made for it by a distillery in Indiana. (Contrary to popular belief, bourbon does not have to be made in Kentucky, although it must be distilled from a mash bill of at least 51 percent corn and meet other standards of identity.)

Fresh Bourbon began making bourbon at another company's distillery (located in Bourbon County) in 2018 and sold its first bottle made there in 2020. Not until late 2022 did Fresh Bourbon open its own distillery.

Which brings us to the question "Who was first?" For its part, Brough Brothers was the first to distill bourbon at its own distillery in Kentucky. Fresh Bourbon, on the other hand, was the first to sell bourbon distilled in Kentucky, albeit at the premises of a different company. Brough Brothers (its corporate name was Victory Global) sued Fresh Bourbon for false advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The district court granted summary judgment to Fresh Bourbon, and Brough Brothers appealed. Victory Global, LLC [d/b/a Brough Brothers] v. Fresh Bourbon, LLC, ___ F.4th ____, 2026 WL 836221 (6th Cir. March 26, 2026).

The reader may at this point remember a television commercial from one of the earliest craft brewers pushing back against advertisements from a mass market brewer criticizing it for not actually brewing its own beer. In its commercial, the craft brewer's founder asked the viewer if it would still be his recipe if he cooked it in the viewer's kitchen. His rhetorical question could be similarly asked by Fresh Bourbon: Could it claim to be the first even though its bourbon was made at another company's distillery?

As with most false advertising cases, the details and context matter. Fresh Bourbon did not claim to have been the first African American-owned company to distill bourbon at its own distillery in Kentucky. Rather, it variously claimed to have been the first such company to "distill," "produce" or "develop" Kentucky bourbon. Unless these claims unambiguously carried with them the unstated message that these actions were carried out at Fresh Bourbon's own distillery, they would not be literally false. Addressing Brough Brothers' argument that a company does not distill, produce or develop bourbon unless it "obtains licenses to open a distillery," the court held that technical licensure requirements were largely irrelevant to the question of literal falsity:

In ordinary language, one would naturally say that a party distilled or produced bourbon when the party put the raw materials into a still and took the other steps necessary to create the alcoholic beverage at the end. And it is undisputed that [Fresh Bourbon's founders] engaged in those activities. Those verbs also would remain accurate even if the party lacked a license. Consider that the bootleggers who sustained the continued production of the drink during Prohibition did so unlawfully. Taken to its logical end, then, Brough Brothers' claim would mean that these bootleggers did not "produce" or "distill" bourbon. Its argument thus conflicts with the ordinary understanding of the words.

2026 WL 836221 at *6 (internal citation omitted)

Brough Brothers also took issue with Fresh Bourbon's claim to have been "considered to be the first black-owned distillery in Kentucky," based on a resolution adopted by the Kentucky Senate in 2020, which made this statement verbatim. Here, Brough Brothers might appear to have the upper hand, because it opened its Kentucky distillery before Fresh Bourbon. Thus, Brough Brothers argued that the statement was a literally false representation of fact. The court held, however, that Fresh Bourbon's citation of the resolution was not literally false because the Kentucky Senate "did in fact issue the proclamation, and it did in fact identify Fresh Bourbon as 'the first black-owned distillery in Kentucky.'" Id. at *7.

The court added that the word "distillery"

[C]ould mean different things in different contexts. True, modern dictionaries usually define "distillery" to mean the physical "works where distilling" happens. Also true, Kentucky law defines "distillery" to mean "the place or premises where distilled spirits are manufactured for sale, and which are registered in the office of any collector of internal revenue for the United States." But consumers do not necessarily flip open a dictionary or check statutes when evaluating products.

Id. (internal citations omitted)

Having concluded that none of Fresh Bourbon's complained-of statements were literally false, the court held that Brough Brothers' failure to introduce evidence that consumers were (or were likely to be) deceived in opposition to Fresh Bourbon's motion for summary judgment was fatal to its case. Id. at *5 (if plaintiffs "lack evidence of deception, their claims that the defendant used misleading advertising cannot survive summary judgment").

Conclusion

The distinction between literal falsity and merely misleading has a substantial impact on the showing needed to obtain relief for alleged false advertising under the Lanham Act and, specifically, the need for a consumer survey. The Sixth Circuit's decision serves as a reminder that aggressive ambiguity in advertising can make for a difficult false advertising challenge because statements susceptible to more than one meaning, with at least one plausible meaning not being literally false, are likely to call for a consumer survey to establish a likelihood of deception when, as in most cases, the complainant lacks direct and admissible evidence that a meaningful number of customers were actually deceived. Although the defendant in this case ultimately prevailed, its success does not stand for the proposition brands that seek to market themselves as the "first" or "only" in a category should refrain from asking themselves "At what?" before launching a campaign.