Facing false advertising suit, Olympia Beer removed the words “pure mountain water” from its website. Does that help or hurt?
Olympia Beer is currently waiting for a court to decide if its various branding, social media posts, and advertising related to water amount to such actionable false advertising. A motion to dismiss has been fully briefed and is currently pending in a putative class action against Olympia Beer for false advertising. (We’ve got the briefs for you below.)
As alleged by the plaintiff in the amended complaint against Olympia (Pabst), “Defendant, Pabst Brewing Company, LLC is falsely creating the impression in the minds of its consumers that its Olympia beer products are exclusively brewed using artesian water in Washington, when in fact, the beers are now brewed in a mass-production brewery located in Los Angeles County, California.”
So what are the alleged misrepresentations giving rise to the suit? Olympia Beer uses “It’s The Water” on its cans as a slogan and used to state on its website that the beer was made from “pure mountain water.” You can see that clearly on the image below on the left.
Oddly, since the plaintiff filed the lawsuit Olympia has changed its website and removed this text (see the picture above on the right). A bold move given that taking the text off the website during the pendency of the suit could be seen as proof that the claim wasn’t true and was material enough that someone thought it should be removed. What’s odd is that they did this before a ruling on their motion to dismiss. This has the potential of being used against them by the plaintiff in a later brief or supplemental pleading as the plaintiff could cite to this act as proof that the statements may have been misrepresentations.
In addition to the website copy, the lawsuit alleges that the claim of pure mountain water and the association with the waters of Tumwater Washington on other parts of the website’s copy creates a false association leading a consumer to conclude that water comes from Tumwater and is artesian. The complaint also alleges that the beer is actually brewed with California water that has a history of contamination and treatment with chlorine. The company has apparently retained pictures throughout the packaging and on its website and used such pictures in social media of the waterfall near the original brewer’s 1850 homestead. Take a look at the trademark on the labeling below. That trademark is actually a drawing of the falls in Tumwater.
As an additional allegation (one that should have everyone understanding how important it is to vet social media as it is advertising too) the complaint also makes issue of a picture from Olympia’s Facebook post showing a can of beer in front of a waterfall and cites the picture and copy reiterating Olympia’s slogan as evidence of creating or implying a false impression as to the origin of the water.
The lawsuit asks for compensation for breaches of the the Consumer Legal Remedies Act; the California Sherman Food, Drug, and Cosmetic Law; and the California Unfair Competition Law.
Interestingly, you’ll recognize the plaintiff’s name as he’s the same plaintiff that filed claims against 21st Amendment and settled the matter over the brewery producing beer in Minnesota while they built a facility in California.
The Takeaway: Origin, ingredients, effects, and a host of other claims about your beverage – where it’s made, what it’s made from, what it will do for a consumer – can all be inferred from multiple sources of your branding such as the packaging, pictures on your website, your social media, your slogans, your labels.
The test for false advertising is whether any of these, or many of them taken as a whole, would lead a reasonable consumer to infer or believe something that isn’t true. If this advertising/branding/labeling causes consumer confusion over the facts, then it may be deceptive advertising and actionable.
A proper review and assessment of your labels, advertising, social media and other public facing properties like websites and event posters is necessary to ensure compliance with false advertising rules and regulations.