A California federal court has dismissed a lawsuit alleging that Diageo PLC misrepresents Red Stripe® beer as brewed in Jamaica, finding “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., order entered April 6, 2016). Details about the complaint appear in Issue 574 of this Update. Bottle trays for six and 12-packs of Red Stripe® include, as the court explained, “the language ‘Jamaican Style Lager and ‘The Taste of Jamaica,’” the Diageo-Guinness USA logo and a disclaimer on the bottom of the packaging that states, “Brewed and bottled by Red Stripe Beer Company Latrobe, PA.” Citing a Second Circuit opinion finding that the description of a knife as a “Swiss Army knife” does not imply it was made in Switzerland, the court found that the “mere…
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The U.S. Court of Appeals for the Sixth Circuit has affirmed an Ohio court’s dismissal of multidistrict litigation alleging Anheuser-Busch intentionally overstates the alcohol content on its malt beverages. In re Anheuser-Busch Beer Labeling Mktg. & Sales Prac. Litig., No. 14-3653 (6th Cir., order entered March 22, 2016). The lower court had dismissed the case based on a Federal Alcohol Administration Act (FAAA) rule allowing content variations of up to 0.3 percent under state and federal law, and the appeals court reached the same conclusion in its de novo review. On appeal, the plaintiffs argued the FAAA rule was intended to apply only to unintentional variance, but the court disagreed, finding no evidence that the law sought to prohibit intentional variations within the 0.3 percent tolerance. Issue 599
A California state court has reportedly rejected Pabst Brewing Co.’s attempt to dismiss a lawsuit brought by Snoop Dogg asserting the rapper is entitled to a portion of the proceeds obtained through the $700 million sale of the company in 2014. Spanky’s Clothing Inc. v. Pabst Brewing Co. LLC, No. BC584365 (Cal. Super. Ct., Los Angeles Cnty., rulings issued February 24, 2016). In the June 2015 complaint, the rapper argued that through a phantom equity clause in his three-year deal to endorse Blast by Colt 45®, a line of fruit-flavored alcohol beverages, he is owed part of the sale price realized by Pabst stockholders. The parties reportedly disputed over whether the court should take judicial notice of the securities sale agreement, but the court found that considering it was inappropriate at this stage of the litigation and denied the motions to dismiss the case. See Law360, February 24, 2016. …
The U.S. Food and Drug Administration (FDA) has extended from February 16 to February 22, 2016, the comment period regarding requirements for fermented and hydrolyzed foods or those containing fermented or hydrolyzed ingredients that carry the “gluten-free” claim. The proposed rule would apply to foods such as sauerkraut, yogurt, pickles, cheese, green olives, vinegar, and FDA-regulated beers. Intended to address the uncertainty of interpreting test methods in terms of intact gluten, the finalized rule would mandate manufacturers to maintain records demonstrating: (i) “the food meets the requirements of the gluten-free labeling final rule prior to fermentation or hydrolysis”; (ii) “the manufacturer has adequately evaluated its process for any potential gluten cross-contact”; and (iii) “where a potential for gluten cross-contact has been identified, the manufacturer has implemented measures to prevent the introduction of gluten into the food during the manufacturing process.” The agency also intends to evaluate the compliance of distilled…
The U.K. Chief Medical Officers have advised consumers to drink less than 6 pints of beer per week under new guidelines for alcoholic beverage intake. Revising previous standards that set weekly limits at 21 units of alcohol for men and 14 units for women, the updated recommendations urge all consumers to imbibe fewer than 14 units weekly and warn that drinking even a moderate amount of beer, wine or spirits on a regular basis allegedly raises the risk of developing certain cancers. They also caution individuals to spread consumption over three or more days instead of engaging in “binge” drinking sessions. “Drinking any level of alcohol regularly carries a health risk for anyone, but if men and women limit their intake to no more than 14 units a week it keeps the risk of illness like cancer and liver disease low,” said Chief Medical Officer of England Sally Davies in…
The Seventh Circuit Court of Appeals has upheld an Indiana law restricting the sale of cold packaged beer in convenience stores, pharmacies and groceries in incorporated towns, finding that the statute survives a rational-basis analysis. Petroleum Mktrs. & Convenience Stores Assoc v. Cook, No. 14-2559 (7th Cir., order entered December 14, 2014). The court found that although Indiana does not have "nearly absolute" power to regulate alcohol sales as the state had argued, it may prohibit stores from selling cold beer, even if it also allows the same stores to sell chilled beverages with higher alcohol content such as wine coolers. The court distinguishes between the licenses required by liquor stores, which can sell cold beer, and the licenses available to convenience stores and similar retailers; liquor stores "are subject to stricter regulations designed to enhance the State's ability to limit and control the distribution of alcohol," including minimum ages…
A jury has awarded two Muslim men $240,000 after they were fired from Star Transport Inc. for refusing to transport beer because of their religious beliefs. EEOC v. Star Transport Inc., No. 13-1240 (C.D. Ill., jury verdict submitted October 21, 2015). Each man will receive $20,000 for mental or emotional pain and $100,000 in punitive damages. The court also awarded each $1,500 in back pay. "We are pleased that the jury recognized that these—and all—employees are entitled to observe and practice their faith, no matter what that might be," EEOC Supervisory Trial Attorney Diane Smason said in an October 22, 2015, press release. Issue 582
A Florida federal court has given final approval to the settlement agreement in a lawsuit alleging Anheuser-Busch falsely advertised its Beck's® beer as imported even though it was manufactured in St. Louis, Mo. Marty v. Anheuser-Busch Cos., LLC, No. 13-23656 (S.D. Fla., approval entered October 20, 2015). Under the agreement, Anheuser-Busch will offer refunds in several tiers, including $0.10 per individual bottle, $0.50 per six-pack and $1.75 per 20-pack, with a cap of $50 per household for those consumers with receipts and $12 for those without. The company will also add language to Beck's® packaging indicating the beer is a "Product of USA." Additional details about the settlement appear in Issue 570 of this Update. Issue 582
Sazerac Co., maker of Fireball Cinnamon Whisky®, and Stout Brewing Co. have filed a joint stipulation of dismissal with prejudice in a lawsuit alleging that Stout infringed Sazerac’s trademark by selling a malt specialty beer called “Fire Flask.” Sazerac Co. Inc. v. Stout Brewing Co. LLC, No. 15-0107 (W.D. Ky., stipulation filed September 24, 2015). Stout has reportedly agreed to stop selling its existing Fire Flask products and will redesign the label for future production. Each party will pay its own attorney’s fees and costs. Additional details on the August 2015 complaint appear in Issue 576 of this Update. See Law360, September 24, 2015. Issue 580
The U.S. Food and Drug Administration (FDA) has issued a final rule allowing “the safe use of mica-based pearlescent pigments prepared from titanium dioxide and mica as color additives in certain distilled spirits.” Mica-based pearlescent pigments are currently approved as color additives in many foods and beverages, including distilled spirits containing “not less than 18 percent and not more than 23 percent alcohol by volume.” Effective November 5, 2015, the new rule permits the use of these pigments at a level of up to 0.07 percent by weight in distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume, while finding that “certification of mica-based pearlescent pigments prepared from titanium dioxide is not necessary for the protection on the public health.” “Regarding cumulative exposure from the current and petitioned uses of mica-based pearlescent pigments, we note that in our recent final rule that…
