Pabst loses latest bid to dismiss class action over claims Olympia beer misleads consumers into thinking its brewed from Olympia’s artesian waters. (Thank god for statutes of limitation or people would start suing because the beer came from Tumwater.)
When we last wrote about this case we discussed how Pabst, the maker of Olympia beer removed the words “Pure Mountain Water” from the text on its website questioning whether that helped or hurt its push to dismiss the claims brought by the plaintiff in the false advertising suit against the beer maker over the Olympia brand asserting the packaging gives the false impression that the beer is made from artesian waters near the Olympia area of Washington as opposed to making the beer “at several mega-breweries throughout the country, including a location in Irwindale, California.”
The complaint has now been through several iterations and while Pabst was successful in having it dismissed on two different occasions, the third time was the charm for the plaintiff as the Court recently denied Pabst’s latest motion to dismiss finding the plaintiff had plausibly alleged that the packaging gives a false impression.
Particularly, the Court found in this recent decision that “Plaintiff alleges enough facts to draw a reasonable inference that a reasonable consumer would believe Olympia Beer is brewed with water from the Olympia area of Washington. It is plausible that a reasonable consumer could see the phrase “The Original Olympia Beer” and the waterfall image on the can and associate Olympia Beer with the Olympia area of Washington, especially in light of Plaintiff’s allegation that the waterfall image “look[s] just like the waterfalls” associated with the original brewery in the Olympia area of Washington State. Further, a reasonable consumer could construe the phrase “It’s the Water” — when taken with the can’s labeling as a whole — to suggest that Olympia Beer is brewed using water from the Olympia area.”
Here is that can label:
In the opinion, false advertising fanatics will note that the Court makes handy work of distinguishing several cases and readily dismisses assertions that “Original” and “It’s the Water” amount to non-actionable puffery:
“Defendant also contends the phrases “The Original” and “It’s the Water” are non-actionable puffery. “Advertising that amounts to ‘mere’ puffery is not actionable because no reasonable consumer relies on puffery.” Haskell v. Time, Inc., 857 F. Supp. 1392, 1399 (E. D. Cal. 1994). Puffery consists of statements that are “vague, highly subjective claims as opposed to specific, detailed factual assertions.” Id. Drawing all reasonable inferences in Plaintiff’s favor and for the reasons already discussed, the Court finds the Olympia Beer label, taken as a whole, makes a sufficiently measurable and specific claim that Olympia Beer is brewed with water from the Olympia area of Washington State.”
Interestingly, this case involves a confluence of the language along with the packaging imagery – the picture of the waterfall near the original brewery site – in establishing the grounds for pleading an actionable misimpression, much like we saw in the Kona Brewing fiasco.
As craft brewers grow their footprint and as more brands look to capitalize on a local feel or perception while potentially contract brewing for cost savings at locations closer to markets but farther afield from their origins, these suits become a reality for locality themed brands.
While the opinion finding the suit could continue rested solely on the packaging, the Court made note that it was not relying on or delving into the social media evidence from Facebook and Twitter that the plaintiff had asserted strengthened his claims.
This isn’t the final bid for Pabst as the loss here just means it will go on to develop a factual record and hopefully beat this silliness on summary judgment. But for those with pockets not as deep, the threat of facing mounting fees in defending against these types of suits poses a real choice between growing as a company and paying attorneys.
You can read the Court’s opinion here.
The link above to our previous post on the beer false advertising suit has many of the original docs.