Anheuser-Busch has settled a class action alleging that the company misrepresented Beck’s® beer as brewed in Germany after a 2012 move to a St. Louis brewing facility. Marty v. Anheuser-Busch Cos., LLC, No. 13-23656 (S.D. Fla., preliminary approval entered June 23, 2015). The uncapped settlement will provide payouts to U.S. purchasers of bottles or packages of Beck’s® since May 2011, with a $50 limit for households with proofs of purchase and $12 limit for those without. Anheuser-Busch will include the phrase “Brewed in USA” or “Product of USA” on the bottles, boxes and website for at least five years. Plaintiffs’ attorneys will receive $3.5 million. Details about a similar lawsuit Anheuser-Busch settled about the origin of Kirin® beer in January 2015 appear in Issue 550 of this Update. Issue 570
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A New Jersey federal court has again denied class certification to a trio of women suing Beam Global Spirits & Wine for allegedly misrepresenting Skinnygirl® Margaritas as using “only natural ingredients” despite containing sodium benzoate. Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (D.N.J., order entered June 8, 2015). Details about the court’s previous examination of certification appear in Issue 529 of this Update. The plaintiffs argued that the class could be ascertained through a three-level screening process designed to limit the number of fraudulent claims. The process would require potential claimants to provide a (i) claim form and receipt for the purchase of the product or (ii) a sworn affidavit with the dates, locations and prices of their Skinnygirl® Margarita purchases as well as a description of the bottle. In the latter case, the screeners would then check the potential claimants’ affidavits for accuracy to determine, for…
A consumer has filed a putative class action against Diageo Americas Supply alleging that its Bulleit® bourbon is not produced in Lawrenceburg, Kentucky, as its label states. M’Baye v. Diageo Ams. Supply, Inc., No. 15-1216 (S.D. Cal., filed June 1, 2015). The complaint asserts that Diageo does not operate a distillery in Lawrenceburg and further alleges that Kirin Brewing Co., “a separate and distinct entity,” makes and distributes the bourbon. The plaintiff points to phrases in the bourbon’s marketing—”small batch,” “ingredients of the very highest quality” and “distinctively clean and smooth”—as evidence that the company intended to position it as a high-end product to justify its sale price of about $53. For allegations of false advertising, unfair competition and misrepresentation, the plaintiff seeks class certification, an injunction, restitution, damages and attorney’s fees. ssue 568
Buckfast Abbey, an English monastery approaching its millennial anniversary, has drawn criticism for its production of a sweet caffeinated wine, The New York Times reports. The beverage, which the abbey sells in 750-milliliter bottles through a distributor, is 15 percent alcohol and contains more than 300 milligrams of caffeine. The fortified wine was originally sold as a tonic, intended for medicinal purposes, but in recent years has gained popularity in Scotland among young people. Critics cite a 2009 report for the Scottish prison service that purportedly found that four in 10 young offenders ranked Buckfast tonic wine as their favorite drink, and 43.3 percent of respondents said they consumed the beverage before committing a crime. “There is no doubt that caffeine-alcohol mixers make wide-awake drunks,” a physician and member of Scottish Parliament, Richard Simpson, told the Times. “If you drink enough alcohol you eventually become comatose, but if you combine…
The British Medical Association in Scotland (BMA Scotland) has reportedly backed legislation under consideration by the Scottish Parliament’s Health and Sport Committee that seeks to ban alcohol advertising at all events geared toward children younger than age 18. According to media reports, the proposed measure would also prohibit the marketing of alcoholic beverages near schools in addition to limiting ads on retail premises. “The alcohol industry’s sponsorship of entertainment or sporting events can see children become walking billboards for alcohol products, exposing them to alcohol brands while they are at an impressionable age,” BMA Scotland Peter Bennie told reporters. “It should not be acceptable for the alcohol industry to sponsor and brand events that are aimed at under-18s and MSPs should use this opportunity to take action on alcohol advertising.” See BBC News, June 4, 2015. Issue 567
Absolut Co. has filed a complaint and a motion for an injunction against Happy Hearts Wine LLC, a New York City importer of Israeli wine, after Absolut noticed a Certificate of Label Approval filed with the Alcohol and Tobacco Tax and Trade Bureau for “Kahfua,” which it alleges is too close to Kahlua®. Absolut Co. Aktiebolag v. Happy Hearts Wine, LLC., No.15-3224 (E.D.N.Y., motion filed June 3, 2015). Happy Hearts’ Kahfua, a “coffee expresso [sic] liqueur,” is packaged in a similar brown bottle with a similar yellow and red label written in a similar script to Kahlua®, Absolut argues in its motion. It further alleges that Happy Hearts has acted with bad faith by infringing Absolut’s trademarks. “Simply stated, there can be no ‘innocent explanation’ for such a blatant knockoff,” the motion asserts. In addition to trademark infringement, Absolut alleges that Happy Hearts is engaging in trademark counterfeiting, which requires…
New Hampshire Governor Maggie Hassan (D) has reportedly vetoed a bill seeking to allow alcohol beverage labels to depict minors as long as the advertising is not intended to promote underage alcohol consumption. Introduced by Rep. Keith Murphy (R-Hillsborough), the measure (H.B. 122) would have struck language from the state’s rules on alcohol beverage advertising that prohibits “any reference to minors, pictorial or otherwise.” Although Murphy pointed to several labeling designs that use images of children or babies but do not promote underage consumption, New Hampshire Liquor Commission Director of Enforcement and Licensing James Wilson opposed the revision on the grounds that it obscures the agency’s “bright line standard” for labeling. As Hassan argued, “Substance misuse, including alcohol misuse, continues to be one of the major public health and safety challenges facing us as a state. Moreover, statistics suggest that New Hampshire has among the highest rates of underage drinking…
The European Food Safety Authority (EFSA) has published its final caffeine risk assessment, concluding that “single doses of caffeine up to 200 mg” and “habitual caffeine consumption up to 400 mg per day does not give rise to safety concerns for non-pregnant adults.” Following a two-month consultation, the EFSA Panel on Dietetic Products, Nutrition and Allergies (NDA Panel) issued a scientific opinion considering “possible interactions” between caffeine and energy drink constituents, alcohol, p-synephrine, and physical exercise. The data evidently indicated no safety concerns when non-pregnant adults consume up to 200 mg of caffeine (i) less than 2 hours before intense physical exercise, (ii) in combination with energy drink ingredients such as taurine or d-glucurono-γ-lactone at typical concentrations, or (iii) in combination with alcohol at doses up to 0.65 g/kg body weight (bw). “The single doses of caffeine considered to be of no concern for adults (3mg/kg bw per day) may…
Skinnygirl Cocktails, LLC and a consumer have filed a joint stipulation of dismissal in a lawsuit alleging that the company and its reality-TV star founder, Bethenny Frankel, mislabeled its Margarita cocktail as “natural” despite containing the preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., joint stipulation of voluntary dismissal with prejudice filed May 5, 2015). The joint stipulation comes after the court refused to certify the class in October 2014, finding that the plaintiff failed to show that the class was ascertainable and that the plaintiff was not a suitable representative for the class due to a personal relationship with her counsel. The stipulation does not indicate whether the parties reached a settlement. Additional information about the denial of class certification appears in Issue 544 of this Update. Issue 564
A Florida federal court has dismissed a lawsuit alleging that Beam Suntory Inc. and Maker’s Mark Distillery falsely label their Maker’s Mark® bourbon as “handmade” because they manufacture the product using a mechanized process. Salters v. Beam Suntory, Inc., No. 14-659 (N.D. Fla., order entered May 1, 2015). The plaintiffs “have been unable to articulate a consistent, plausible explanation of what they understood ‘handmade’ to mean in this context. This is understandable; nobody could believe a bourbon marketed this widely at this volume is made entirely or predominantly by hand,” the court said. The court first found that the process of making Maker’s Mark® bourbon is handmade in the original sense of the word because it is “distinguished from the work of nature,” according to the Oxford English Dictionary definition. “In that sense all bourbon is handmade; bourbon, unlike coffee or orange juice, cannot be grown in the wild.” The court…
