Yes, changing your advertising and discontinuing your beverage can make a difference: Court nails coffin shut on Olympia Beer class action over “It’s the Water”

When last we wrote, things didn’t look so good for Pabst’s Olympia Beer – they had been fighting a class action alleging damages because consumers were deceived by their “It’s the Water” printed advertising and packaging slogan. They got there after removing “pure mountain water” advertising from their website. The claim that the Court allowed to move forward was that the misimpression that all the beer was made with water from Washington State was actionable (this was based on the waterfall pictures and the “It’s the Water” slogan on the packaging). For those unfamiliar with how class action false advertising claims work, plaintiffs generally argue that and but for the claims that they assert are false that you put on your wine, spirits or beer, consumers would have bought cheaper products – so they lost money buying your beer, wine or spirits (in this case, Olympia Beer) based on the misimpression.

Amended complaint in beer false advertising lawsuit; alcohol false advertising; misleading advertising
Label of Olympia Beer Can from Motion to Dismiss Filed by Olympia Beer

But Olympia didn’t quit, or actually, it did, and that made all the difference. While the case progressed, in January of 2021, Pabst announced that it was discontinuing Olympia Beer. Presumably the brewer stopped making it as in the most recent motion practice in the class action lawsuit over beer false advertising, the Court has rejected further requests by the Plaintiff to certify its class and put the matter to rest based solely on the lack of potential for future harm specifically because the beer is no longer made:

Defendant contends “Plaintiff lacks standing to seek injunctive relief because he cannot show a concrete threat of future harm where Olympia Beer no longer uses the alleged misleading slogan and is no longer on the market.” (ECF No. 54 at 9.) Further, Defendant argues Plaintiff cannot show a likelihood that “he will again be wronged in a similar way.” (Id. at 24-25.) In reply, Plaintiff argues there is a threat of future harm as it is possible the line of Olympia Beer will be put back into production. (ECF No. 59 at 7.) Plaintiff contends that even though the “It’s the Water” slogan was removed, there are still “lingering impressions” from the misleading advertising that require correcting. (Id.)

Defendant relies on Bruton, 2018 U.S. Dist. LEXIS 30814, 2018 WL 1009257, to argue Plaintiff lacks standing to bring this class action. (ECF No. 54 at 25.) In Bruton, the court considered a motion for class certification for consumers who were allegedly misled by the labeling on various Gerber products. Bruton, 2018 U.S. Dist. LEXIS 30814, 2018 WL 1009257, at *1. The defendant challenged the plaintiff’s standing to bring the class action because the misleading labeling was removed from all products. 2018 U.S. Dist. LEXIS 30814, [WL] at *6. The plaintiff in Bruton relied on Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017) to argue she still had standing because, even though the defendant had ceased mislabeling the food, she would be unable to rely on the product’s labeling in the future. Bruton, 2018 U.S. Dist. LEXIS 30814, 2018 WL 1009257, at *6. However, the court distinguished Davidson because, in that case, the company had not removed the misleading advertising. Id. Thus, the court found the plaintiff did not have standing because the defendant “unlike Kimberly-Clark, [had] stopped making the misleading statements.” Id.

Furthermore, the Bruton court pointed out that if the defendant resumed the allegedly harmful conduct, the plaintiff could sue defendant again. 2018 U.S. Dist. LEXIS 30814, [WL] at *7. Alternatively, if defendant resumed the harmful conduct and stopped merely to defeat plaintiff’s standing, “such conduct would fall squarely within the established exception to mootness for disputes that are ‘capable of repetition, yet evading review.'” Id. (quoting Kingdomware Techs., Inc. v. U.S., 136 S. Ct. 1969, 1976, 579 U.S. 162, 195 L. Ed. 2d 334 (2016)) (internal citations omitted). Essentially, the exception would allow a plaintiff to bring another suit which would likely avoid standing dismissal, even if defendant ceases the harmful conduct. Id.

The Court is persuaded by the reasoning in Bruton. Here, as in Bruton, Plaintiff lacks the real and immediate threat of repeated injury to establish standing because Defendant’s Olympia Beer has been discontinued and the misleading slogan officially removed in accordance with the Tax and Trade Bureau. See Bruton, 2018 U.S. Dist. LEXIS 30814, 2018 WL 1009257, at *6; (ECF No. 54 at 11-12, 24-25.) Thus, Plaintiff “does not face an action or imminent threat of future harm because the source of potential harm, namely [Defendant’s advertising and labeling], has ceased.” Bruton, 2018 U.S. Dist. LEXIS 30814, 2018 WL 1009257 at *6. Plaintiff argues Defendant may continue to sell the product in the future (ECF No. 59 at 7), however, if so, Plaintiff can bring another suit or use the “capable of repetition, yet evading review” exception for mootness. See Bruton, 2018 U.S. Dist. LEXIS 30814, 2018 WL 1009257, at *7. Therefore, the Court finds Plaintiff lacks standing to seek injunctive relief, and accordingly, the Court DENIES certification of a Rule 23(b)(2) class.

Note how the Court also dealt with the possibility that ceasing to make the beer was a ruse that someone could use to defeat this kind of class action – a “fool me once” style of argument that would allow a recurring violation to stand as proof that future harm is possible and should lead to injunctive relief. 

Rather sad that the loss of Olympic was the impetus for this case’s end. Rather good to know that if the Rule 23(b)(2) injunction justification for class actions is a plaintiff’s asserted justification for class certification that ending the offending behavior is a quick way to bring an end to an otherwise frivolous lawsuit.

You can read the order denying certification here.

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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