All Hat, No Cattle: Suit Over Anheuser-Busch’s 5% ABV Statements Doesn’t Allege a Violation of Federally Mandated Tolerance Levels

The recent class action lawsuit filed against Anheuser-Busch
Companies
requesting damages is getting more attention than it deserves.  The case appears to have sparked some
interest given the recent Maker’s
Mark fiasco about diluting alcohol content
.

But the AB suit is different.  It is about the advertised alcohol content,
at least that’s what everyone is reporting on, and yet the suit itself says
absolutely nothing worthwhile or even factual about the advertised vs. actual
alcohol content. 

The only real allegations about the actual alcohol content
are so vague that they say nothing at all. 
The plaintiffs simply state that AB “intentionally and falsely overstates
the alcohol content of its malt beverages.”  And that AB shaves “the total alcohol content
to “well below the percentage stated on its labels.”  But that means nothing other than that an
advertised 5.0% brew could have a 4.9% content. 

The terms “overstates” and “well below” are wishy-washy
wiggle words with no meaning or merit. 
People should stop perpetuating this news story as some statement that
AB “waters down” its beer and that it misrepresents the alcohol content.  Until the suit is amended or an actual number
is alleged with regard to the alcohol content vs. the 5.0% representation, the
complaint hasn’t said a single thing.

Moreover, the federal regulations regarding advertising
alcohol content actually allow for variance and representations within a
tolerance that people should be aware of.

The Federal Regulation governing Alcohol Content Statements can
be found at 27
CFR 7.71
.

But the TTB publishes summarized version for brewers in the Beverage Alcohol Manual at Chapter
1.

The decision to state the alcohol content is left to the
brewer unless otherwise required or prohibited by state law.  When the brewer chooses to advertise the
content, then the TTB requires that:

Alcohol content must be expressed to the nearest 0.1% EXCEPT THAT for malt beverages
containing less than 0.5% alcohol by volume, the alcohol content may be
expressed to the nearest 0.01%

With regard to the tolerances or allowed variance from the
stated amount to the actual amount, the TTB says:

For malt beverages containing 0.5% or more alcohol by volume
– A tolerance of 0.3% above or below the alcohol content stated on the label is
permissible EXCEPT THAT regardless
of this tolerance:

A malt beverage labeled as containing 0.5% or more alcohol
by volume may not contain less than 0.5% alcohol by volume

A malt beverage labeled as “LOW ALCOHOL” may not contain 2.5% or more alcohol by volume

A malt beverage labeled as “REDUCED ALCOHOL” may not contain 2.5% or more alcohol by volume.

So a brewer hasn’t run afoul of the Federal Regulations or
the TTB if the stated alcohol content is (+/-) 0.3% from the stated
content.  (e.g., my advertising a 5.6% content is fine if the beer has 5.3%; I’m
in trouble if my beer has 5.2%).

In fact, unless a 5.0% representation is being used for a 4.6% or below
beverage, there’s really no story at all.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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