Increasing number of false advertising cases against food and drink hard to swallow, critic says
Stephanie N. Grimoldby May 9, 2016, 10:01am
TALLAHASSEE - William Large, president of the Florida Justice Reform Institute, has a hard time understanding how multiple deceptive beer label class action lawsuits have been accepted in federal court.
In the latest example, Dr. Henry Vazquez of Miami-Dade County in April sued Anheuser-Busch Companies (AB InBev) in U.S. District Court for the Southern District of Florida, for allegedly using misleading labels and advertising that caused Vazquez to believe Leffe Beer is brewed by monks at the Abbey of Leffe in Belgium. The beer actually is brewed at the fully automated Stella Artois Brewery in Leuven, Belgium, court documents state.
Large believes the case isn’t right for class certification and should be dismissed.
“All beer companies are required to comply with comprehensive regulations from the federal government, and these regulations specify what must be stated on labels of domestic and imported beer,” Large said. “If some individual has a subjective misinterpretation of what that label means, that individual's subjective interpretation needs to be tested against a reasonable consumer standard.”
In the Leffe case, Vazquez allegedly thought, after looking at the label, that Leffe beer was brewed in an abbey. But his expectations are unreasonable as compared to a reasonable consumer, Large argues. A reasonable purchaser of beer would purchase the beverage because of its taste - or for myriad other reasons.
“Even if that were the case, that there was one individual who was suffering from a misapprehension about the label, how do you prove that there were other individuals in the class that were suffering from the same misapprehension, in particular, when this label already complies with federal labeling laws?” he asked.
The lead plaintiff in a class action lawsuit is supposed to represent other members of the class who have an identical problem, Large said. Since the purchase of beer is very subjective in nature, it would be extremely difficult to prove that any other member of the class had the same subjective thought as the lead plaintiff.
Perhaps other potential members of the class bought Leffe beer because it was on sale, Large said. Or because they wanted to bring a different beer that no one else would bring to a party. Or because their favorite color is yellow, and Leffe’s yellow label caught their eye.
“To me, the law is very clear,” Large said. “The case should be dismissed. I don't know how it’s possible to identify the subjective interpretations of other people who purchased this beer and why they purchased it. There’s no log of everyone who’s purchased this beer or a way to identify them and a way to test their subjective beliefs when they purchased the beer … so the proposed class is not ascertainable.”
“This is an abuse of our legal system and class action jurisprudence.”
Ervin Gonzalez, who is representing Vazquez in the Leffe case, stands by the claim, which maintains Vazquez and others paid premium foreign prices for a beer they believed was superior in quality because of its alleged origination in an abbey, but instead, is similar to other mass-produced products.
And the alleged deceptive labels that fed those purchases should be corrected, said Gonzalez, a partner at Colson Hicks Eidson in Coral Gables.
“If people enjoy being cheated and lied to, then it’s frivolous,” he said. “If people expect the product that they purchase to be correct and honest and not deceiving, it’s a very meritorious claim.”
Alva Mather, a partner with Pepper Hamilton LLP, said she can understand Large’s reaction.
“False advertising cases against beverage and food manufacturers concerning the location of where the products were made are on the rise,” she said. “And some of these cases are hard to swallow, so to speak. Leffe is just one in a long line of these types of cases.”
Her colleague, Yvonne McKenzie, a partner with Pepper Hamilton, agreed.
“There are state laws that allow these kind of claims, and plaintiffs have had varied success,” she said. “Some are dismissed early, and rightfully so. But there are some courts that say it’s up to a jury to decide whether the claims could deceive a reasonable consumer, and in those situations, the case is allowed to move to the costly and burdensome discovery phase. Those are the cases that provide motivation for plaintiffs’ attorneys to file these kind of cases, and drive more and more lawsuits of this nature.”
For its part, AB InBev feels its bottle labels accurately describe the beer it contains and where it was brewed.
“Leffe has a proud, Belgian brewing heritage and is still brewed today with care and tradition under an agreement with the Abbaye Notre-Dame de Leffe,” Felipe Szpigel, president of The High End, AB-InBev’s high end division, said in a statement. “The Union of Belgian Breweries provides guidance for certifying that a beer is a Belgian Abbey beer, and Leffe meets these criteria.”
Still, there is a lesson to be learned by other brewing companies, small and large alike, said Trevor Brewer, a business and beverage attorney and partner at BrewerLong in Maitland, just outside of Orlando, who provides legal advice to Florida breweries.
“It's not enough to just pass muster with the TTB [Alcohol and Tobacco Tax and Trade Bureau],” said Brewer. “If the TTB approves your label, that isn’t the end of the analysis. It’s also important to consider what they’re saying and how they're saying it and how that might be interpreted by the public at large.”
Brewer isn’t concerned that smaller breweries will face this type of litigation. While there are more than 4,000 breweries in the U.S., most are nowhere near the size of Anheuser-Busch, which means there is a small pool of defendants that make it worthwhile to file this type of class action lawsuit.
“That being said, I am very concerned about my breweries and the folks I work with, what they say on their beer labels,” he said. “One, the federal government has a say in that, and running into a problem with the federal or state government could very easily disrupt their business in a very large way. Two, they do need to be responsible about what they say on their own labels. Class action or not, it is something they should be responsible for.”