A vintner has filed a lawsuit alleging Colorado's “wine development fee,” charged to wholesalers, is an unconstitutional excise tax. Vineland Corp. v. Colorado, No. 18-30199 (Colo. D.C., filed April 24, 2018). Since 1990, Colorado has imposed a 10-year renewable excise tax of one cent per liter on all vinous liquors sold in the state. In 1992, the state passed the Taxpayers Bill of Rights (TABOR), which mandated advance voter approval for extension of expiring taxes; in 1997, the legislature amended the 1990 act, renaming the excise tax a “wine development fee.” The plaintiff seeks declaratory judgment that the fee is “an impermissible attempt to extend an expiring tax without voter approval, and that this attempt to rename an excise tax surcharge [] without such voter approval is a violation of TABOR.” Further, the plaintiff seeks injunctive relief, attorney’s fees and a refund of all fees paid in the past four fiscal…
Tag Archives alcohol
The maker of Kombucha Dog beverages has filed lawsuits against Trader Joe’s Co. and other kombucha producers alleging the companies misrepresent the amount of alcohol and sugar in their products and violate federal and state laws regulating the sale of alcohol beverages. Tortilla Factory, LLC v. Trader Joe’s Co., No. 18-2977; Tortilla Factory, LLC v. Better Booch, LLC, No. 18-2980; Tortilla Factory, LLC v. Makana Beverages, Inc., No. 18-2981; and Tortilla Factory, LLC v. Rowdy Mermaid Kombucha, LLC, No. 18-2984 (C.D. Cal., filed April 9, 2018). According to Tortilla Factory's complaints, kombucha's post-bottling fermentation can cause it to develop an alcohol content of 0.5 percent or more by volume, subjecting it to regulation under federal law, including Alcohol and Tobacco Tax and Trade Bureau regulations that govern production, labeling and distribution. The complaints assert that independent testing revealed that the defendants' products contain between 1.0 and 2.7 percent alcohol but…
After advocacy groups asserted that DJ Khaled promotes alcohol brands to minors on social media, the music producer has reportedly reduced the number of his posts that mention alcohol. The complaint also alleged that Khaled failed to disclose his endorsement relationship with the brands, which include Diageo's Ciroc vodka and Sovereign Brands' Belaire sparkling wine. The contested posts include a Snapchat video of Khaled pouring alcohol into a bowl of cereal and an Instagram post featuring alcohol bottles displayed behind Khaled. Reportedly, many of Khaled’s followers are minors and he is the national spokesperson for educational nonprofit Get Schooled. Several news sources reported that Khaled's posts may violate federal law—including Federal Trade Commission rules governing branded content—and industry self-regulation standards, as the Distilled Spirits Council of the United States prohibits alcohol ads appearing on platforms in which at least 28 percent of the audience is under 21. Diageo, which reportedly ended Snapchat advertising…
The French agency responsible for protecting the country’s agricultural appellations of origin has filed a notice of opposition to a California winery’s application for the trademark “Beardeaux,” arguing that the use would dilute the protected term “Bordeaux” used to designate wines from southwestern France. Institut National de l’Origine et de la Qualité v. Bear River Winery LLC, No. 91240350 (T.T.A.B., notice of opposition filed March 29, 2018). The notice asserts that wines from the Bordeaux region of France are entitled to use an “appellation d’origine contrôlée (AOC)” that “delimits the specific areas to which the appellation pertains, but also specifies the agricultural products from which the product may be derived and production methods and techniques that may be used to make the product.” Further, it argues that U.S. law recognizes the Bordeaux AOC “as a foreign nongeneric name of geographic significance which is also a distinctive designation of a specific…
A Massachusetts federal court has dismissed half of the claims in a lawsuit alleging Diageo-Guinness misrepresents where its Guinness Stout beer is brewed. O’Hara v. Diageo-Guinness USA Inc., No. 15-14139 (D. Mass., entered March 27, 2018). The plaintiff alleged that the “Frequently Asked Questions” page of Guinness’ website stated that “All Guinness sold in the UK, Ireland, and North America is brewed in Ireland at the historic St. James’s Gate Brewery in Dublin," while a disclosure on Guinness bottles sold in the United States indicate that the product is “Imported by DIAGEO – Guinness USA, Stamford, CT. Brewed and bottled by Guinness Brewing Company, New Brunswick, Canada. Product of Canada.” The court dismissed three of the six causes of action because the bottling and packaging labels were approved by the U.S. Alcohol and Tobacco Tax and Trade Bureau. A misrepresentation claim and two claims for violations of state consumer-protection laws will…
A consumer has filed a putative class action alleging Pabst Brewing Company LLC's Olympia beer labels falsely imply the product is brewed from artesian water in Washington despite being brewed in a facility in Los Angeles. Peacock v. Pabst Brewing Co. LLC, No. 18-0568 (E.D. Cal., filed March 15, 2018). The complaint alleges that although Olympia was originally brewed with artesian water in Washington, Pabst shifted production to California after it acquired the company in 1999. The plaintiff further argues that the beer may be brewed using chlorinated municipal water, that the brewery’s water supply has previously been contaminated with industrial solvents and that two Superfund sites are located within three miles of the brewery. According to the complaint, Olympia's website credits the Washington water for its premium taste. Alleging violations of California consumer-protection statutes, the plaintiff seeks class certification, injunctive relief, corrective advertising, damages and application of the common fund…
The Australian Advertising Standards Bureau (ASB) has upheld complaints that Rusty Yak Ginger Ale's advertising, which urged viewers to “stop the ginger gene” from spreading by looking for bottles of the product hidden in six-packs of beer, was offensive to people with red hair. Carlton and United Breweries ran the television and internet ads for the product and told ASB the ads were intended to launch the product “in an affectionate, light-hearted and humorous way by linking the hair colour with [its] ‘crisp and zingy Rusty Yak gingery flavor.’” The Ad Standards Community Panel considered the ad in relation to its advertising code of ethics, which refers to discrimination on the basis of race, ethnicity and other personal characteristics. The panel said, “DNA can be considered to be related to ancestry and descent . . . in this context the reference to people with red hair falls within the definition of…
The U.K. Advertising Standards Authority (ASA) has upheld two challenges to television ads, one for Aldi Stores Ltd. and one for The Wrigley Co.'s Extra chewing gum, ruling that neither can be aired again. In the Aldi ad, "Kevin the Carrot,” an advertising mascot, was used to advertise alcohol beverages in a parody of “The Sixth Sense.” The ad began with Kevin saying, “I see dead parsnips,” and featured a voice-over explaining, “Kevin was feeling a little bit tense. He thought there were spirits. He had a sixth sense. As it turned out, his instincts were right. There were a few spirits that cold Christmas night.” Throughout the ad, various alcohol beverages appear. The ad was challenged on the grounds that the ad was likely to appeal to minors because the main character was a child's toy. Aldi argued that the ad was part of its 2017 holiday parody series…
The Trademark Trial and Appeal Board (TTAB) has ruled that Pan American Properties Corp. cannot register “White Sangriiia” as a trademark because both terms, as well as their combination, are “merely descriptive.” In re Pan American Props., Corp., No. 86556214 (T.T.A.B., entered February 26, 2018). TTAB also rejected the company’s argument that the term was “fanciful or suggestive.” Although Pan American Properties referred to its previous registration of the “fanciful” term “Gasolina Sangriiia” for prepared cocktails in its appeal, TTAB noted that neither the company nor the examining attorney included the registration in the application record before the appeal was filed, and TTAB refused to take judicial notice of “registrations residing in the Office.” Finally, TTAB found insufficient evidence to prove the term “sangriiia” had acquired distinctiveness; even if Pan American Properties had provided enough evidence to prove five years of sales, the board held, that period is not long enough…
An EU magistrate has returned a preliminary ruling in a dispute between the Scotch Whisky Association and a German manufacturer of a spirit called “Glen Buchenbach” that may hinder the trade group's claim of infringement of the registered geographical term “Scotch Whisky.” Scotch Whisky Ass’n, The Registered Office v. Klotz, No. C-44/17 (opinion of advocate general issued February 22, 2018). The trade group argues that the use of the Gaelic term “Glen” is both an indirect commercial use and an evocation of the registered geographical indication, amounting to a false and misleading indication of origin of the product. Noting that at least three whiskies produced outside of Scotland include "glen" as part of their names, the magistrate found that "‘Glen’ does not have a sufficiently clear and direct link with the protected geographical indication in question.” The indirect use of a registered geographical indication, the court found, “requires the disputed…
