A recent study has reportedly demonstrated “the protective effect of coffee on non-viral hepatitis-related cirrhosis mortality.” George Boon-Bee Goh, et al., “Coffee, alcohol and other beverages in relation to cirrhosis mortality: the Singapore Chinese Health study,” Hepatology, April 2014. Funded by the National Institutes of Health, researchers examined diet, lifestyle and medical history data from 63,275 middle aged participants enrolled in The Singapore Chinese Health Study over a mean follow-up of 14.7 years. During that time, 114 participants died from cirrhosis related to viral hepatitis (33 percent), chronic alcohol consumption (12 percent) and hepatitis C (2 percent), as well as biliary cirrhosis, autoimmune cirrhosis, and cryptogenic or unspecified cirrhosis. In addition to finding that alcohol consumption was “a strong risk factor for cirrhosis mortality,” the study evidently showed an inverse dose dependent relationship between caffeine intake and non-viral cirrhosis mortality. The study’s authors have suggested that “the benefit of coffee on…
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Diageo Americas Supply, Inc. has filed a declaratory judgment action against the Tennessee Alcoholic Beverage Commission director challenging the constitutionality of a 1937 law that requires licensed alcohol beverage makers in the state to store their products “only within the county authorizing the operation or in a county adjacent to the county authorizing the manufacturing operation, and such possession shall be limited to storage facilities of such manufacturer” (Storage Law). Diageo Americas Supply, Inc. d/b/a George A. Dickel & Co. v. Bell, No. 14-0873 (M.D. Tenn., filed March 28, 2014). Alleging that the law has never been enforced, the complaint includes the defendant’s March 20 letter warning the company that it was in violation of the Storage Law because it “is storing product (manufactured/distilled alcoholic beverages) produced at its Tullahoma, Tennessee, distillery in warehouses located in Louisville, Kentucky.” According to the company, most of its distilled alcohol beverages are stored on-site…
A federal court in Kentucky has determined that distillery neighbors may proceed with state law-based tort claims alleging that the facility’s emissions cause “whiskey fungus” to accumulate on their real and personal property. Merrick v. Diageo Americas Supply, Inc., No. 12-0334 (W.D. Ky., Louisville Div., order entered March 19, 2014). Additional details about the lawsuit appear in Issue 444 of this Update. Finding conflicting authority on whether the Clean Air Act (CAA) preempts the plaintiffs’ claims for negligence and gross negligence, temporary and permanent nuisance and trespass, the court carefully analyzed related U.S. Supreme Court, federal court and state court rulings. It concluded that the Third Circuit’s analysis in Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013), and the Sixth Circuit’s in Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d (6th Cir. 1989), “capture the prevailing law for…
According to New York Attorney General (AG) Eric Schneiderman, Phusion Projects, LLC, the company that makes Four Loko flavored malt beverages, has agreed to settle allegations by 20 attorneys general and the San Francisco city attorney that the company marketed and sold its products in violation of consumer protection and trade practice statutes. In re Investigation by Eric T. Schneiderman, N.Y. AG of Phusion Projects, LLC, No. AOD 14-075 (N.Y. AG, Bureau of Consumer Frauds & Protection, March 25, 2014). Without admitting any liability, the company has agreed not to (i) promote the misuse of alcohol or mixing flavored malt beverages with caffeinated products; (ii) manufacture, market, sell, or distribute any caffeinated alcohol beverages; (iii) provide materials to wholesalers, distributors or retailers promoting mixing flavored malt beverages with caffeinated products; (iv) sell, distribute or promote alcohol beverages to underage persons or hire underage persons to promote these products; (v) use college-related…
The company that makes Four Loko, a caffeinated malt liquor beverage allegedly responsible for the deaths of five consumers, has reached a settlement with two Liberty Mutual Insurance Co. units which had sought a declaration that a policy exclusion freed them from defending or indemnifying the beverage maker in the underlying lawsuits. The Netherlands Ins. Co. v. Phusion Projects, Inc., No. 12-7968 (N.D. Ill., stipulation of dismissal filed March 11, 2014). The settlement terms have not been disclosed. Details about a Seventh Circuit ruling on the insurance carriers’ duty to defend appear in Issue 508 of this Update. Issue 517
A three-attorney, Pasadena, California-based law firm has filed numerous 60-day notice letters since March 2013 to companies that make alcoholic beverages, warning that they have failed to comply with a section of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) by selling without the required warnings (i) “alcoholic beverages, when associated with alcohol abuse,” (ii) “ethyl alcohol in alcoholic beverages,” and (iii) “ethanol in alcoholic beverages.” The letters, filed on behalf of John Bonilla, Rafael Delgado, Jesse Garrett, and Rachel Padilla, assert that the companies have sold their products in the state without first indicating to consumers under “Title 27, CCR § 25603(e)(1): ‘WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.’” According to a news source, four individuals have filed Prop. 65 violation lawsuits in the Los Angeles County Superior Court, alleging…
A federal court in California has granted a motion for sanctions filed by Jackson Family Wines, which brought an infringement action against Diageo North America; an adverse inference instruction will be given to the jury during trial, and the plaintiff will be able to recover the costs of its efforts to secure a Diageo marketing department employee’s documents, destroyed while the lawsuit was pending. Jackson Family Wines v. Diageo N. Am., Inc., No. 11-5639 (N.D. Cal., order entered February 14, 2014). At issue in the litigation is the alleged infringement of Jackson’s La Crema wine by Diageo’s Crème de Lys wine brand. The employee whose laptop was “imaged” outside the firm after she temporarily left Diageo’s employ was, in Diageo’s words, “the conduit between Diageo’s marketing team and Northstar [Research Partners, LLC], the third-party market research company” that conducted focus groups for the selection of the Crème de Lys brand.…
The U.K. Advertising Standards Authority (ASA) has upheld two complaints alleging that Heineken UK Ltd.’s print and TV advertisements gave the impression that its Kronenbourg 1664 beer was brewed in France and made primarily from French hops, despite text disclaimers stating that the product was “Brewed in the UK.” According to the February 12, 2014, ruling, the ads in question touted Kronenbourg 1664 as a “French beer… brewed with the aromatic Strisselspalt hop” sourced from Alsace, France. Although Heineken noted in its response that “Kronenbourg 1664 was an inherently French beer… first brewed in 1952 in Alsace by Brasseries Kronenbourg,” ASA ultimately agreed with complainants that the print ad’s “degree of emphasis… on the connection with France would lead consumers to believe that the entire brewing and manufacturing process took place in that country,” while the TV ad’s focus on the Strisselspalt hop “implied that all, or a significant majority…
The Federal Aviation Authority (FAA) has reportedly nixed a brewery’s plan to use an unmanned aerial system (UAS) to deliver six-packs of its winter lager to ice-fishing shacks in Stevens Point, Wisconsin. According to media sources, Lakemaid Beer posted an online video advertising its drone delivery service, prompting FAA to notify the company that the scheme allegedly violates as many as five different regulations, “ranging from the operator’s rating to the use of airspace.” The agency apparently intends to issue regulations concerning the commercial use of drones in 2015, as larger companies like Amazon investigate the feasibility of UAS local delivery services. Although Lakemaid has started a petition on WhiteHouse.gov asking FAA to issue an airworthiness certificate for its beer drones, the agency has since reiterated its decision to ground the program. “The FAA’s prime directive is safety,” an FAA spokesperson told The Hill. “While we are evaluating many potential…
The Sixth Circuit Court of Appeals has determined that Kentucky has a rational basis for restricting the types of retailers that may be issued licenses to sell liquor and wine, thus ruling that the law does not violate grocers’ equal protection rights. Maxwell’s Pic-Pac, Inc. v. Dehner, Nos. 12-6056, -6057, -6182 (6th Cir., decided January 15, 2014). A state law adopted in 1939 that today prohibits the issuance of a retail drink license to “any business in which a substantial part of the commercial transaction consists of selling at retail staple groceries or gasoline and lubricating oil,” was interpreted in 1982 by the Alcohol Beverage Control Board in a regulation that defines “substantial part” (10% or greater of the monthly gross sales) and “staple groceries” (foods intended for human consumption other than soft drinks, candy, hot foods, and foods prepared for immediate consumption). Grocers challenged the restrictions on equal-protection, separation-of-powers…
