Frivolous Lawsuit Against Walmart Alleges Private Label / Contract Beer Made at Larger Facility Can’t Be Craft

In what’s certain to raise the ire of many private labelers and contract brewers around the country who benefit from the expertise, skill, and equipment available at commercial breweries Walmart has been tagged with a private labeling “crafty” suit in Ohio.  The complaint (you can read it here) alleges that Walmart has a hand in creating, along with another company, WX Brands, and Genesee brewing in Rochester N.Y., the “Trouble Brewing” beer that’s sold at Walmart stores.  (Not to be confused with the Irish Trouble Brewing).  Alleging that the complainant doesn’t think the beer meets The Brewers Association’s definition of Craft Beer:


An American craft brewer is small, independent and traditional.


Annual production of 6 million barrels of beer or less (approximately 3 percent of U.S. annual sales). Beer production is attributed to the rules of alternating proprietorships.


Less than 25 percent of the craft brewery is owned or controlled (or equivalent economic interest) by an alcoholic beverage industry member that is not itself a craft brewer.


A brewer that has a majority of its total beverage alcohol volume in beers whose flavor derives from traditional or innovative brewing ingredients and their fermentation. Flavored malt beverages (FMBs) are not considered beers.

The complaint asserts that because the beer might not meet these standards and because Walmart places its beer “on its shelves with other ‘craft beers’, Defendant is further perpetuating the myth that it’s a Craft Beer.”

The problem is that despite being the subject of one of my all-time favorite beer review videos, there’s nothing wrong with this type of private labeling.  The sole complaint here is at its heart that this beer might not meet a third-party educational and lobbying group’s definition of “craft beer” and that Walmart puts this beer on shelves next to what might be considered “craft beer” by this same organization.  This isn’t actionable.

Moreover, this lawsuit quotes from (and obviously spawned from) a Washington Post article published on January 25, 2017, about Walmart’s beer.  But. it’s been long reported in the media since well before 2017.  In fact, over seven months ago, this article from Business Insider came out in June of 2016, linking to this article from The Street, detailing Walmart’s efforts to roll out its own craft beer – private labeled.  There’s no surprise here.

False advertising harms consumers by duping them into purchasing products based on misleading or false assertions about the products qualities, origins, or some other aspect.  Consumer’s aren’t harmed when they simply fail to do their research or say, “I really thought it was something else” despite a lack of misleading assertions on the part of an advertiser, manufacturer or someone else promoting a product.  If you claim you thought your purchasing power was going to promote some “small business” or a “local” business, and there’s no claim to either of those things on the can or in the advertising, you’re not really harmed.  If that’s really what you want to promote with your purchasing power, it’s incumbent on you to investigate what you’re buying and ensure you accomplish your goals.  Simply showing up at a grocery store and grabbing something sitting next to a known craft beer doesn’t absolve you of these obligations.  And yet that’s the essence of this recent claim made in Ohio against Walmart.  

Even worse, companies that create great beer and look to utilize the skills and professionalism of large breweries to produce it can’t be counted out of the craft beer industry.  Some of the best beers out there are contract brewed or private labeled and benefit from the manufacturing processes and quality standards that using large facilities offer.  Also, the brewer’s at Genesee are experienced, well-trained, and experts in their craft.  It’s astounding to allege that they wouldn’t produce a craft beer.  In fact, here’s the Untappd rating for the Trouble Brewing referenced in the case and it has over 35,000 reviews, most of them favorable.

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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