E-Malt.com News article: USA: Court denies AB InBev’s motion to dismiss advertising suit over Beck’s beer

In his courtroom, after close examination of bottles and cans of Beck’s Beer, and the cartons that held them, a federal judge said one thing was very clear: The labels declaring the brand was actually made in the USA were difficult to read, The National Law Journal reported on September 10.

That observation in U.S. District Court for the Southern District of Florida apparently formed the core of U.S. Magistrate Judge John O’Sullivan’s order denying Anheuser-Busch Cos., LLC’s motion to dismiss a proposed class action accusing the company of misleading consumers into thinking the brews are imported from Germany.

Florida resident Francisco Reny Marty and two other plaintiffs allege AB engaged in unfair and deceptive practices to obscure the fact that, since 2012, Beck’s has been made in Missouri, more than a continent away from the German breweries where the brand reigned for 225 years.

According to the plaintiffs’ complaint in Marty v. Anheuser-Busch, Marty was influenced to buy Beck’s by its labels and marketing, which prominently cited the beer’s “German Quality” and that it was “Brewed Under the German Purity Law of 1516,” in an alleged attempt to obscure its Missouri roots. Marty alleges AB engaged in unjust enrichment and violated California, Florida and New York consumer protection and business statutes.

But AB’s motion argued that the state law claims should be dismissed because the plaintiffs failed to plead facts establishing they suffered any harm, or to identify any misrepresentation that Beck’s is imported. The company also contends Marty does not establish standing to be granted injunctive relief.

O’Sullivan agreed with AB on the question of an injunction, but gave the plaintiffs time to address that in a second amended complaint. But, otherwise, the judge found they had sufficiently established evidence of deceptive marketing, and dumped the rest of AB’s motion down the legal drain.

At the Aug. 1 hearing, which was requested by AB to illustrate its contention that the Beck’s packaging clearly states the beer is brewed in the United States, O’Sullivan came to a different conclusion. Unlike the prominent references to Germany, mention of the beer’s U.S. origin is difficult to see.

In his order, describing the result of his examination of 12-ounce bottles and cans of Beck’s, he wrote: “The undersigned finds that the ‘Product of USA’ disclaimer as printed on the actual cans and bottles themselves is difficult to read. Depending on the angle from which the viewer looks at the product, the ‘Product of USA’ disclaimer can be obscured by overhead lighting because the disclaimer is printed in a white font against a shiny, metallic silver background.”

Even worse, O’Sullivan wrote, the cartons obscure the “Product of USA” labeling. To see it, a consumer would have to either open the cartons of 12-pack bottles or lift a bottle from the six-pack carton to see them, the judge wrote.

“A reasonable consumer is not required to open a carton or remove a product from its outer packaging in order to ascertain whether representations made on the face of the packaging are misleading,” O’Sullivan concluded.

Plaintiffs are represented by attorneys with Kozyak, Tropin, & Throckmorton; Harke Clasby & Bushman LLP; and Campbell Law, LLC. Anheuser-Busch’s attorneys are with Kenny Nachwalter, P.A., and Skadden Arps Slate Meagher & Flom.


12 September, 2014