The U.S. Department of Justice (DOJ) has filed an antitrust lawsuit against Belgian brewer Anheuser-Busch InBev SA/NV (ABI) and Mexican brewer Grupo Modelo S.A.B. de C.V., seeking to enjoin ABI’s June 28, 2012, acquisition of Modelo. United States v. Anheuser Busch InBev SA/NV, No. 13-127 (D.D.C., filed January 31, 2013). DOJ contends that the $20.1 billion deal, which would combine the largest and third largest beer companies in the United States, “would substantially lessen competition for beer in the United States as a whole and in 26 metropolitan areas across the United States, resulting in consumers paying more for beer and having fewer new products from which to choose.” According to the complaint, Modelo is the only major beer company that has consistently resisted ABI’s annual price increases and has gained a majority share of some markets in California, New York and Texas by pursuing an aggressive marketing strategy with innovative…
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In a long-running dispute between Anheuser-Busch LLC and Budějovický Budvar, národini podnik, the European Union’s (EU’s) General Court has determined that a Czech brewery cannot stop the St. Louis-based company from using the “Bud” mark in a number of EU member nations. Budějovický Budvar, národini podnik v. Anheuser-Busch LLC, Nos. T-225/06 RENV, T-255/06 RENV, T-257/06 RENV, & T 309/06 RENV (Gen. Ct., decided January 22, 2013). The matter was before the court on remand from the Court of Justice. The court found that the Czech brewery’s evidence of sales in France and Austria were so small that the company could not show “trade of a sign of more than mere local significance.” The parties were ordered to pay their own costs.
The Journal of the American Medical Association (JAMA) recently highlighted energy drinks in its December 19, 2012, online issue, where two commentaries discussed caffeine-related adverse events and the risks of mixing energy drinks with alcohol. Authored by Memorial Sloan Kettering Cancer Center infectious disease specialist Kent Sepkowitz, the first viewpoint article notes that “the swift change in public perception of energy drinks from harmless mild stimulant to lethal, unregulated drug is unprecedented.” Summarizing recent cases of unintentional caffeine overdoses and caffeine poisoning, the article claims that “a person would need to ingest at least 12 of the highly caffeinate energy drinks within a few hours” to reach a lethal dose of caffeine. Sepkowitz argues, however, that this estimate does not take into account variables such as medications that may slow the metabolism of caffeine or preexisting cardiac or liver conditions “that could increase susceptibility to caffeine-related adverse events.” “The appropriate…
Ruling that the named plaintiff’s claims are not typical of those of the putative class in a false-labeling suit brought against the companies that made and marketed Skinnygirl Margaritas®, a federal court in New York has denied his motion for class certification. Rapcinsky v. Skinnygirl Cocktails, L.L.C., No. 11-6546 (S.D.N.Y., decided January 9, 2013). The named plaintiff, a Massachusetts resident, allegedly purchased the product in that state as a gift for his wife who had indicated that she had been served the beverage during a party with friends and liked it. He brought the suit under New York statutes that apply to products purchased in New York and involve deceptive acts or practices involving in-state residents. He also claimed common-law breach of warranty. According to the court, the laws invoked do not protect the plaintiff’s purchases. While his alleged injury may be the same as class members, the plaintiff, “having not…
The Centers for Disease Control and Prevention (CDC) has released a study claiming that on any given day, adult consumers of alcoholic beverages imbibe approximately 16 percent of their total caloric intake from alcoholic beverages— “the same contribution to overall calories as the 16 [percent] from added sugars among U.S. children.” Samara Joy Nielsen, et al., “Calories Consumed from Alcoholic Beverages by U.S. Adults, 2007-2010,” NCHS Data Brief, November 2012. According to the study, which used data from the National Health and Nutrition Examination Survey, the adult population consumes on average “almost 100 calories per day from alcoholic beverages.” Divided between the sexes, however, the data reportedly showed that men drank 150 calories worth of alcoholic beverages each day whereas women consumed “a little over” 50 calories. “We’ve been focusing on sugar-sweetened beverages. This is something new,” said CDC epidemiologist and study co-author Cynthia Ogden. In particular, the study noted…
U.K. members of Parliament (MPs) have reportedly agreed to revisit a beer duty escalator tax that raises the price of a pint each year by 2 percent plus the rate of inflation. According to media reports, Conservative MP Andrew Griffiths argued in the House of Commons that the current beer tax has cost the country thousands of jobs as beer sales decline and pubs are forced out of business. The debate purportedly concluded with 100 MPs voting to review the tax despite Treasury Minister Sajid Javid’s concern that the government would lose £105 million over the next two years if it were abolished. “The reality is since the introduction of the beer duty escalator [in 2008], beer duty has increased by a crippling 42 per cent,” said Griffiths, who chairs the All-Party Parliamentary Beer Group. “The point about an escalator is you stop when you get to the top. We…
Two commercial liability insurance companies have filed a complaint against Phusion Projects Inc., the company that makes Four Loko®, an alcoholic beverage containing stimulants such as caffeine, guarana and taurine, seeking a declaration that “they do not owe a duty to defend or indemnify” the company in personal injury and wrongful death actions filed against it in several states. The Netherlands Ins. Co. v. Phusion Projects Inc., No. 12-7968 (N.D. Ill., filed October 4, 2012). The underlying complaints involve a California resident who was shot to death by police after consuming the beverage and acting “in an irritated, agitated, and disoriented manner”; a New York resident who sustained injuries in an auto accident with a woman who had consumed the product and allegedly drove her car in a reckless manner; a New Jersey resident who died from a stabbing in an attack by a woman who had allegedly “imbibed Four Loko”;…
Naked Wines LLC has filed an action against Nakedwines.com, Inc. and Groupon, Inc. alleging that they have infringed its “family of erotically-themed marks” including NAKED WINERY®, NAKED WINERY VIXEN®, NAKED WINERY NAUGHTY®, and NAKED WINERY DIVA®. Naked Wines LLC v. Nakedwines. com, Inc., No. 12-01717 (D. Or., filed September 21, 2012). According to the complaint, Oregon-based Naked Wines has used the marks since 2005 and has “developed and maintains customers throughout the United States.” The marks have purportedly “become an asset of substantial value as a symbol of Plaintiff and its products.” Nakedwines.com, located in Napa, California, is allegedly “the U.S. arm of a UK-based, online company that sells and distributes wine from multiple producers.” According to the plaintiff, defendant Nakedwines.com, which is working with various producers to sell 400,000 cases of wine in the United States in 2013 and planning to open a winery in California under the name “Naked…
A federal court in New York has denied a motion to dismiss a consumer fraud action against the company that makes Four Loko®, a beverage allegedly containing high alcoholic and caffeine content and sold without disclosing “possible negative health effects.” Yourth v. Phusion Projects, LLC, No. 11-1261 (N.D.N.Y., decided September 27, 2012). The defendant contended that the court lacked subject matter jurisdiction on the ground of mootness “because defendant has offered ‘to fully refund any amounts that Plaintiff paid for Four Loko as well as any fees and costs he incurred.’” Noting that the circuit courts have split over whether a defendant can moot a putative class action by offering to satisfy the plaintiff’s demand before a motion for class certification is filed, the court concluded that “unless plaintiff has unduly delayed in moving for certification, defendant’s offer of full relief does not moot the action.” According to the court,…
The Australian Medical Association (AMA) has released a 60-page report in conjunction with its National Summit on Alcohol Marketing to Young People that accuses industry of targeting children with new media tactics as well as alcohol-flavored food and cosmetic products. Urging “more robust policy and stronger regulatory oversight,” the report aims to document current alcohol advertising tactics in Australia, examine the impact of these tactics on drinking patterns, and make a case for regulatory and statutory reform. In particular, the report claims that “the introduction of digital technologies has opened up new platforms for marketing and promotion, with alcohol companies aggressively harnessing the marketing potential of online video channels, mobile phones, interactive games, and social networks such as Facebook and Twitter.” It also argues that alcohol-flavored foods and cosmetics, such as vodka-flavored lip gloss, not only “circumvent most existing regulations regarding marketing and the placement of alcoholic products” but introduce…
