Millercoors Wins “Not From Australia” Lawsuit Over Claims That Foster’s Marketing Misleads Drinkers

In one of latest wins for brewers against deceptive labeling lawsuits brought against domestically made beers over branding that arguably conveys they are imported, Millercoors has scored a win for its Foster’s brand against a putative class action looking to cash in against the company.  The lawsuit (you can read the amended complaint here) alleged that several items created the impression that led the plaintiff to buy the beer thinking the brew he purchased in the U.S. was imported from Australia.  These elements in the packaging and advertising were:

• Defendant sells domestically-brewed Foster’s in cans and bottles that prominently feature Australian symbols (the Red Kangaroo and Southern Cross) and that are virtually identical in design and appearance to their imported counterparts;  

• Defendant’s website for Foster’s beer:

  • opens with the sound of a didgeridoo;
  • depicts the Foster’s can;
  • depicts a neon outline of the Australian continent accompanied by the words “HOW TO SPEAK AUSTRALIAN”;
  • touts Foster’s as “AUSTRALIAN FOR BEER”;
  • includes a Facebook icon asking consumers to “FAN US, MATE,” Foster’s, Australian for Beer;  

• Defendant proclaims Foster’s to be “the largest-selling Australian beer brand in the world,” and informs consumers it is made from hops grown only in Australia, Foster’s Legacy; and  

• Defendant continues its pervasive “How to Speak Australian” advertising campaign on various media sites, including television.

The lawsuit sought class status looking to recoup the money expended on the beer by consumers who were allegedly tricked into buying Foster’s thinking the beer came from Australia and not from breweries in Albany, Georgia and Fort Worth, Texas.

The court dismissed the suit noting something of particular importance to all manufacturers – the packaging has a clear statement of origin – approved by the Alcohol and Tobacco Tax and Trade Bureau which reads “BREWED AND PACKAGED UNDER THE SUPERVISION OF FOSTER’S AUSTRALIA LTD. MELBOURNE, AUSTRALIA BY OIL CAN BREWERIES, ALBANY GA AND FORT WORTH TX” on every bottle and can:

The court also noted in its opinion dismissing the claims that “© Oil can Breweries, Fort Worth, Tx” appears on the Foster’s website as well. Oddly, the court stated that this copyright statement on the website was “inarguably clear as to the brewing location.”  Which is obviously isn’t.  But the label statement approved by the TTB is.  You can read the court’s opinion here. For those following this type of false advertising litigation, the court distinguished this case from the $20 Million Beck’s beer fiasco in Florida where a court refused to dismiss the suit because the brewery attributions that would show the beer wasn’t imported were on bottled inside packaging that failed to disclose the fact – thus leaving consumers without the ability to inspect those attribution statements on the store shelves.  (Same issue as the Kirin Brewery lawsuit which paid out to consumers as well.)

In essence, the court basically found that the accurate disclosure statement above (the brewing attribution approved and required by the TTB) was sufficient to overcome the potential impression created by the kangaroo, Southern Cross, didgeridoo and that advertising campaign you know you remember.  This ups the number of recent wins for brewers like Red Stripe and Sapporo which have recently defeated these claims based on similar label statements.