Kona Brewing Sued For Falsely Advertising It’s Made in Hawaii

Kona Brewing prides itself on its Hawaiian origins.  Take a look at that website, even the little lizard has some kind of surfer tattoo.  Back in 2010, the brand sold to Craft Brew Alliance and according to Wikipedia, “Kona Brewing Company brands are also produced at Widmer Brothers Brewery in Portland, Oregon and Redhook Ale Brewery in both Woodinville, Washington and Portsmouth, New Hampshire, the sister subsidiaries of Craft Brewers Alliance, Inc.”  So, while they’re Hawaiian, some of the beer isn’t brewed there.  Big deal.  Wikipedia goes on to do something interesting – give you great information about the brewing process and quality assurances emplaced for Kona beers made at these other facilities:

Recipes and beer specifications are dictated by Kona Brewing Company’s brewmaster, who oversees all production at each Kona Brewing Company’s partner breweries. The beer brewed at Kona Brewing Company’s partner breweries utilizes Kona’s hops, malt, and proprietary yeast. In order to create a consistent experience across the board, the water mineral levels at each brewery are adjusted to replicate the water used in Hawaii. First the water is treated for impurities and then minerals are added to mimic the fresh water available in Hawaii. Water is an important aspect of all Kona Brewing Company’s beers. A sample of every batch of beer is sent to the Kona, Hawaii brewery and corporate offices for sensory evaluation.

The fact that this information is publicly available hasn’t stopped a false advertising action brought in California yesterday from claiming that some yahoo’s buy the beer because they think it is made in Hawaii.  You can read the complaint here.  The incredibly detailed and well written complaint… seriously, this one is leaps and bounds above the other craft beer false origin complaints we’ve seen in the past few years.

At base, these “mislabeled origin” false advertising lawsuits are pretty much all the same, and can be summed up in under three paragraphs taken from the complaint:

• Craft Brew advertises, markets, distributes, and sells these brands of beer to consumers via retail stores and restaurants throughout the United States based on the misrepresentation that these beers are brewed by Kona Brewing Company in Hawaii. However, none of these brands of beer (bottled, canned, and continental U.S. draft) are brewed by the Kona Brewing Company in Hawaii.  Rather, these beers are made by Craft Brew in Oregon, Washington, Tennessee, and/or New Hampshire.
• Plaintiffs and other consumers purchased Kona Brewing Co. beer because they reasonably believed – based on Craft Brew’s advertising and labeling – that this beer originates from Hawaii. As a result, Plaintiffs and other consumers have been deceived and have suffered economic injury. …
• As a result of the unlawful scheme alleged herein, Craft Brew has been able to overcharge Plaintiffs and other consumers for beer, induce purchases that would otherwise not have occurred, and/or obtain wrongful profits. Craft Brew’s misconduct has caused Plaintiffs and other consumers to suffer monetary damages. Plaintiffs, on behalf themselves and other similarly situated consumers, seek a refund and/or rescission of the transaction, and all further equitable and injunctive relief as provided by applicable law.

What’s potentially interesting about this action is that rather than simply stating that the name Hawaii appears on labeling for the beer, the complaint dedicates multiple pages to describing how the branding, labelling, graphics, descriptions and other portions of the packaging all contribute to the misleading perceptions they allege.  For any designer or marketer who ever thought their work went unappreciated, these packaging descriptions are certainly vindication that someone is paying attention.

The complaint also points to the federally required (and approved) brewed and packaged address statement and claims that it is misleading because it lists (as the regulations allow) the multiple addresses for Kona:  

KONA BREWING COMPANY CO KONA HI · PORTLAND, OR · WOODINVILLE, WA · PORTSMOUTH, NH · MEMPHIS TN FRESH, RESPONSIBLE, ALWAYS ALOHA.

The complaint does this without mentioning that this is permissible and required by the federal regulations.  

While this complaint does well is assert the facts.  It pleads with a level of detail and assertion about the concerted effort to convey Hawaiian connection and origin that is usually lacking in these false origin opening salvos.  The real question is whether it is enough to get it over the growing body of district court decisions that have ruled in favor of producers who paint a picture of connection to a particular locale even though the beer is now (for freshness sake!) made in parts unknown.