litigation

On March 22, 2016, the U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s dismissal of a putative class action lawsuit against Anheuser-Busch. In In re: Anheuser-Busch Beer Labeling Marketing and Sales Practices Litigation, the Sixth Circuit held that A-B’s compliance with federal regulations governing alcohol content provided A-B with a safe harbor from state-law consumer protection claims. Notably, the court held that the safe harbor applied regardless of whether A-B intentionally overstated the alcohol content of its beer.

The consumer-plaintiffs filed several class-action lawsuits against A-B back in 2013, alleging that A-B intentionally overstated the alcohol content of many of its beers. These class-actions were consolidated into one suit in the U.S. District Court for the Northern District of Ohio. A-B moved to dismiss the consolidated action, arguing that its compliance with federal regulations provided it with a safe harbor from the plaintiffs’ claims.

The federal regulation at issue, 27 CFR § 7.71(c)(1), provides in relevant part, “[f]or malt beverages containing 0.5 percent or more alcohol by volume, a tolerance of 0.3 percent will be permitted, either above or below the stated percentage of alcohol.” The plaintiffs argued that the regulation should only apply to accidental deviations, not to intentional overstatements of alcohol content. A-B countered that the regulation does not...

Another lawsuit. On Tuesday, a Massachusetts consumer filed suit against Guinness, alleging deceptive labeling and marketing. This is yet another in the long series of nationwide class action lawsuits stalking the alcohol beverage industry in the past 15 months, since the initial Tito’s suits. The case is O’Hara v. Diageo-Guinness, filed in federal court. Just four days earlier, a New York City man filed suit against Foster’s Beer similarly.

The Guinness complaint says the company “represents that all Extra Stout sold in the North America is brewed in Ireland at the historic St. James’s Gate Brewery in Dublin.”

This, however, would seem to be an extra stout assertion, because new lawyer Frank and I walked over to a beer store today. The store had Guinness in various sizes and shapes, but all of the packaging seemed to show the origin clearly. Most clearly said brewed in Ireland; some (such as above) clearly said BREWED IN CANADA. We did not see any packages that made the origin hard to divine. Things may be different up in Massachusetts but nonetheless, this would seem to drastically limit the size of any class and any damages. With all the Guinness on display at the local store, clearly showing product of Ireland, and labels like this, we don’t...

There is big news out of a federal court in San Diego. On Friday, the judge in two of the Tito’s labeling cases said it, loud and clear. Words matter — on labels. This is important because it was starting to get very confusing, what with all the label cases floating around, and many dismissals. There are at least eight separate Tito’s cases scattered around the country, and a couple dozen alcohol beverage litigations pending in recent months. Along the way, Judge Miller made it clear he is not too impressed with the rigor of TTB’s label review system, or the fact that the Tito’s “Handmade” Vodka labels have been approved on many occasions.

On Friday, November 20, 2015, in the U.S. District Court for the Southern District of California, Judge Jeffrey Miller issued two very similar Orders in two separate cases against Tito’s Vodka. The cases are:    – Hofmann v. Fifth Generation    – Cabrera v. Fifth Generation

In hindsight, Judge Miller’s November 20th Orders seem obvious. If the claim meant little to nothing, why would Tito spend zillions of dollars to make sure everyone knows his vodka is “handmade”? Why else would it be the main word on the main label, and throughout his marketing? Why else would it work so well,...