A consumer has filed a putative class action in California state court alleging that Anheuser-Busch’s “Lime-A-Rita” malt beverages have too many calories and carbohydrates to be sold under the Bud Light Lime® label. Cruz v. Anheuser-Busch, LLC, No. BC563150 (Cal. Super. Ct., Los Angeles Cty., filed November 12, 2014). The plaintiff alleges that she purchased Bud Light Lime Lime-A-Rita® believing it to be low in calories and carbohydrates, but later learned that a serving of 8 fluid ounces contains between 192 and 220 calories and 22.8 to 23.6 g of carbohydrates compared to Bud Light’s 110 calories and 6.6 g of carbohydrates. “In general, ‘light’ may generally describe a zero calorie or a reduced calorie food, and consumers such as Plaintiff and the Class understand the ‘light’ label on a product that has a reduced or low number of calories,” the complaint asserts. The plaintiff attributes the level of calories…
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A Kentucky Court of Appeals panel has reversed a trial court determinationthat trespass and nuisance claims filed by residents alleging damage from the ethanol emissions of nearby distilleries are preempted under the Clean Air Act (CAA). Merrick v. Brown-Forman Corp., No. 2013-CA-002048-MR (Ky. Ct. App., decided November 14, 2014). A federal court considering similar issues has also found that state law-based claims are not preempted. That ruling is summarized in Issue 519 of this Update. In the Kentucky state court proceeding, the circuit court dismissed the action, ruling that the “federal Clean Air Act preempts source state air quality tort claims of the type asserted by” the plaintiffs. They allege that the atmospheric ethanol the distilleries emit promotes the growth of “whiskey fungus” that causes a “pervasive black film covering virtually every outdoor surface,” which requires cleaning and power washing to remove. Plaintiff Bruce Merrick owns a company that makes…
According to a news source, New Jersey residents have filed a putative class action in state court against the Texas-based company that makes Tito’s Handmade Vodka®, the fourth such action filed within the past two months, alleging that promoting and labeling the product as “handmade” deceives consumers because the vodka is made in an industrial facility and the company sells more than 15 million bottles a year. McBrearty v. Fifth Generation, Inc. The first complaint was filed in California in September 2014 and subsequently removed to federal court, Hofmann v. Fifth Generation, Inc.; the second followed in early October in an Illinois state court, Aliano v. Fifth Dimension, Inc.; the third was filed in a Florida federal court, Pye v. Fifth Generation, Inc. The complaints variously refer to the company’s website and a Forbes article purportedly featuring images of old-time pot-still production (“i.e., in a shack containing a pot still…
Reversing a lower-court decision, a California appeals court has ruled that state dram shop statutes—meant to protect some sellers of alcohol beverages from liability for injuries related to the beverages’ consumption—do not provide immunity for City Brewing Co. in a lawsuit alleging that the company was negligent in producing Four Loko. Fiorini v. City Brewing Co., No. F067046 (Cal. Ct. App., 5th Dist., order entered November 6, 2014). After drinking two 23.5-ounce cans of Four Loko, the plaintiff’s son was shot to death by police in October 2010. The plaintiff alleged that City Brewing, which brewed, bottled and labeled Four Loko, was liable for negligence for producing an alcohol beverage in a nonresealable can apparently containing alcohol “equivalent to five or six 12-ounce cans of beer” and “as much caffeine as two cups of coffee” because “combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably…
An Illinois federal court has declined to certify a class in a lawsuit alleging that Skinnygirl Margarita, a pre-mixed alcohol beverage sold by Skinnygirl Cocktails, and its founder, Bethenny Frankel of reality show "The Real Housewives of New York City" and talk show "Bethenny," was labeled as “all natural” despite containing the non-natural preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., order entered October 30, 2014). The plaintiff sought to represent a class of all consumers who purchased Skinnygirl Margarita spirits in Illinois after March 1, 2009, but the court identified several shortcomings with the proposed class. First, the court found that the plaintiff failed to offer a valid method to identify the purchasers. “Plaintiff says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase, but does not…
Sazerac Co. has recalled its Fireball Cinnamon Whiskey from Sweden, Norway and Finland because some batches contain levels of flavoring chemical propylene glycol that exceed European limits. The company says that it mistakenly shipped batches to Europe that were intended for the United States, where the U.S. Food and Drug Administration (FDA) allows higher levels for the Generally Recognized As Safe ingredient. The recall drew media attention to the regulation discrepancy, with many noting that industrial-grade propylene glycol is used in antifreeze. The company clarified October 29, 2014, that it uses food-grade propylene glycol, which it says is also used in many other consumable products, including salad dressing, beer, ice cream, and cake. Sazerac called the ingredient “ideal for use in a large variety of flavors to give most of today’s food and beverages their distinctive taste. Flavor companies use it to carry flavor ingredients through to the final product,…
Lucasfilm Ltd. has filed a notice of opposition to Walton Street Brewing Corp.’s application to the U.S. Patent and Trademark Office (USPTO) to register “Empire Strikes Bock” as a mark. Lucasfilm argues that the name will cause confusion with and dilute goods related to its 1980 film"The Empire Strikes Back," which, as Bloomberg BNA notes, is not associated with any active trademarks but may be famous enough to be protected under common law. The production company also claims that granting the “Bock” trademark will cause confusion with its existing mark—Skywalker Vineyards—in the alcohol industry. In an irreverent video response, Walton Street’s owner explains that the brewery has sold “Bock” on tap at its pub for several years and now intends to bottle it, and it never intended to cause any confusion with its “parody” beer. In the background, a person in a Stormtrooper costume appears to stir beer with a lightsaber,…
The Belarussian Chamber of Representatives has reportedly approved draft legislation that would stop the practice of advertising products and events other than alcohol beverages with names and logos that are confusingly similar to alcohol brands. Some bottled waters, for example, are apparently promoted with names, fonts and images that are associated with vodka brands with just a slight change in the nam —a practice referred to as “umbrella” advertising. Existing advertising law would be tightened to help reduce the use of alcohol, combat alcoholism and reduce tobacco consumption—the latter by applying the same standards to ad campaigns bearing a resemblance to tobacco product brands. The bill will become law unless rejected by the National Assembly’s Council of the Republic or the president. See Minskby.com, October 23, 2014. Issue 542
French Health Minister Marisol Touraine has reportedly proposed a law that would establish standards for ingredient transparency in mass-produced food, blank cigarette packets and “fixing rooms” that allow drug addicts to inject themselves in a safer environment, as well as impose fines—or possible jail sentences up to one year—for selling “products that make alcohol appear pleasant.” The draft law’s binge drinking provisions have attracted media attention for their seeming contradiction with French culture, but a 2013 report from France’s National Institute for Prevention and Education in Health found that excessive consumption of alcohol among French young people is rising, with as many as one in six children between ages 11 and 14 reporting that they have been drunk at least once. Under the proposed law, “Directly provoking a minor to excessive consumption of alcohol will be punished by a year imprisonment and a fine of €15,000.” The law would reportedly…
Adopting a magistrate judge’s recommendation, a Texas federal court has ruled that Texas can intervene in a lawsuit brought by brewer Alamo Beer Co. alleging that Old 300 Brewing infringed Alamo Beer’s trademark for using the silhouette of the Alamo building on its labels. Alamo Beer Co. LLC v. Old 300 Brewing LLC, No. 14-285 (W.D. Tex., order entered October 14, 2014). The state of Texas filed a motion to intervene in April 2014, asserting that its interests in the Alamo trademark were not adequately represented by either party. A magistrate judge issued a report on the matter in May recommending that Texas be allowed to join the lawsuit, and Alamo Beer argued to the court that the magistrate judge had failed to properly analyze two factors of mandatory intervention and that the state lacked the right to intervene under trademark law. Reviewing Alamo Beer’s concerns, the court rejected its arguments and…
