MillerCoors LLC, owner of the Blue Moon Brewing Company (“Blue Moon”) brand and purported brewer of the Belgian-style witbier, recently removed to the U.S. District Court for the Southern District of California a class action lawsuit filed by Evan Parent on behalf of himself and all similarly situated consumers.  Despite the fact that he claims to be a “beer aficionado,[1]” Parent alleges to have purchased Blue Moon beer from various retailers from 2011 to mid-2012 under the mistaken belief that it was a “microbrew or ‘craft’ beer.” Parent asserts that MillerCoors deceptively marketed and charged a premium for Blue Moon beer by: (1) misleadingly characterizing it as a “craft” or “artfully crafted” beer; and (2) withholding the name “MillerCoors” from its label.

In 1980, there were 8 craft breweries in the United States. By 2014, that number had grown to 3,418.  During that time, craft breweries have slowly cut into the massive share of the $100 billion domestic beer market held by large breweries, such as Anheuser-Busch and MillerCoors. Craft beer has quickly grown from roughly a 3% market share in 2000 to 19% in 2014.  The large breweries have responded by creating their own “craft beer” brands, such as Blue Moon and Shock Top, and by purchasing craft breweries, such as Goose Island, Kona Brewing Co., Leinenkugel, and 10 Barrel Brewing.

Parent’s claim is founded upon the definition of “craft beer” set forth by the Brewer’s Association, a not-for-profit trade association, “dedicated to small and independent American Brewers, their beers and the community of brewing enthusiasts.”  The Brewer’s Association defines “American Craft Brewer” as:

  • Small: Annual production of 6 million barrels of beer or less;
  • Independent: less than 25 percent is owned or controlled by an alcoholic beverage industry member that is not itself a craft brewer; and
  • Traditional: a brewer that has a majority of its total beverage alcohol volume in beers whose flavor derives from traditional or innovative brewing ingredients and their fermentation.

Parent alleges that Blue Moon is located in Coors Field, but that the Blue Moon beer sold in stores is brewed at MillerCoors’ Colorado and North Carolina breweries. Parent asserts that MillerCoors’ massive annual production takes it outside the definition of Craft Brewer set forth by the Brewers Association.

It is undisputed that MillerCoors does not qualify as a “Craft Brewer” pursuant to the guidelines set forth by the Brewer’s Association. Contrary to plaintiff’s assertion, however, the Brewer’s Association is not the arbiter of how “Craft Brewer” is defined.  Additionally, it remains to be seen whether “craft beer” can only be brewed by a “Craft Brewer.” In other words, it is unclear whether the term “craft beer” is reflective of the brewer who produces it or relates to the product itself. Does MillerCoors’ size preclude it from producing a “craft beer,” even if it uses quality ingredients and small batch sizes? Presumably, Parent will have a difficult time disputing the “quality” of Blue Moon beer given he purchased and consumed it
Continue Reading Craft V. Crafty: The Blue Moon Class Action Suit Against MillerCoors LLC

Hebrew National hot dogs with mustard and relish

Hebrew National Hot Dogs may answer to a Higher Authority, but for the time being they’ll also be answering to the United States District Court of Minnesota.  Hebrew National Hot Dogs which are owned by ConAgra Foods, Inc. has been sued in a class action Complaint (pdf download) which alleges that it utilized deceptive and misleading labeling by representing that Hebrew National hot dogs are strictly 100% kosher in violation of applicable consumer protection statutes.  The suit claims that ConAgra’s kosher meat producer, AER Services, improperly slaughtered and did not maintain the slaughter house in accordance with Kosher laws by, among other things, using knives which were nicked thus preventing a clean cut as mandated by Kosher law and by failing to keep kosher meat separate from non-kosher meat.

The suit contains causes of action for:

  1. negligence;
  2. violation of state consumer protection acts;
  3. breach of express and/or implied warranty; and,
  4. breach of implied warranty of merchantability/fitness for a particular use.

The suit further alleges that employees of AER Services raised concerns about the procedures at the slaughter house, but those concerns were dismissed and the employees were either threatened with retaliation or fired.  None of the employees are named in the suit.

Hebrew National hot dogs are certified as Kosher by Triangle K, the Kosher Food Supervision and Certification Agency which is based in New York.  Neither Triangle K nor AER Services are named as Defendants in the Complaint.  In statements, Triangle K and AER Services have all denied that the allegations.  ConAgra which successfully removed this action to Federal Court has untilJuly 13, 2012to answer.  In response to the suit, ConAgra issued a press release which states that…

for more than 100 years, Hebrew National has followed strict dietary law, using only specific cuts of beef that meet the highest standards for quality, cleanliness, and safety with no by-products, artificial flavors, or artificial colors.”

Some states have statutes which regulate the labeling of Kosher food.  See e.g., the New York Kosher Law Protection Act of 2004.  We expect the Food and Drug Administration as well as other states to issue additional regulations pertaining to such advertising given the increased production and distribution of other religiously significant food products.  Food manufacturers and distributors should follow these regulations closely, as failing to follow them can be costly.  One recent suit brought in Orange County California against Super King Market subsequently settled for $527,000.  In that suit,  Super King allegedly improperly sold generic meat as halal meat, or that which follows Islamic law.
Continue Reading Hold the relish: ConAgra under fire for allegedly misrepresenting kosher status of Hebrew National hot dogs

POM WonderfulClass action lawsuits against major consumer product companies are on the rise thanks, in large part, to the Better Business Bureau’s National Advertising Division (“NAD”). The NAD assists in the advertising industry’s self-regulatory efforts to ensure truth and accuracy in advertising by providing guidance to industry in an effort to ensure that consumers can rely on the claims made by companies in their advertising campaigns – ironically enough –in an effort to avert litigation.

NAD does so by investigating complaints submitted to it by either competitors or consumers concerning advertising claims made by various companies.  NAD then uses a hybrid form of alternative dispute resolution to decide whether the claims can be substantiated, and publishes its decision online, in print, and via press release.

Recently, plaintiffs’ class action lawyers from across the country have begun to look to the decisions of NAD in order to support false advertising class action claims.  In a never-ending effort to seek out and discover the “next big thing,” plaintiff attorneys have begun to focus their attention on NAD rulings, which have sparked a new wave of class action lawsuits aimed at companies’ advertising campaigns.

According to NAD Director Andrea Levine, these NAD-driven lawsuits are not so much about “fixing the advertising or protecting the public,” but instead are all about the “money,” as there is no shortage of both product sales and consumers to join in these claims.

The NAD decisions inadvertently lay out a “roadmap” for plaintiff attorneys because they not only detail the legal doctrines which support their findings, but they also indentify an advertiser’s potential defenses and vulnerabilities before discovery even commences.  A perfect example of this is the class action lawsuit which was filed against the William Wrigley Jr. Company, based on the claim that its Eclipse brand gum was scientifically proven to kill germs that cause bad breath.  In a decision published one month prior to the filing of this suit, the NAD chronicled in great detail its critique of Wrigley’s support for its position and concluded that Wrigley should discontinue or modify its advertising campaign.  The class action plaintiffs then used the information gleaned from the NAD decision as a basis to sue Wrigley’s.  In fact, they actually cited the decision in their complaint.  Wrigley’s wound up settling that case for $6 million.

In another recent case, a federal class action lawsuit charges that POM Wonderful falsely advertised that its pomegranate juice provided certain health benefits to its users.  The NAD found that some of the research on which POM relied did not support its health claims – evidence which is directly cited by the plaintiffs in their class action lawsuit.  A copy of the POM Wonderful Class Action Lawsuit can be read here.

It appears that NAD rulings are becoming a gateway for class action lawsuits which, if left unchecked, may spiral out of control.  Companies must coordinate their efforts to enact legislation that makes it more difficult for a class
Continue Reading POM Wonderful? Not so much. The Better Business Bureau Inadvertently Fuels Class Action Lawsuits