Friday, June 26, 2015
Bud Light Is Not a Beer
This is not about whether or not Bud Light was ever beer. This is not a shot at bland, tasteless corporate lagers. Let's stipulate that AB InBev is a brewer and makes beer. For purposes of this exposition, Budweiser is a beer, Beck's is a beer, Stella Artois is a beer, Brahma is a beer. (Those are all AB InBev brands.)
Yes, it says 'beer' right there on the label, but Bud Light is not a beer. Furthermore, 'Light' is not a promise of low calorie refreshment.
If Bud Light is not a beer, then what is it?
Bud Light is a brand.
The product in the picture, that Bud Light product happens to be a beer. It contains 110 calories per 12 ounces, about what you would expect from a light beer. But Bud Light Lime-a-Rita contains 220 calories per 8 ounces. That's 27.5 calories per ounce for the Rita compared to 9.2 calories per ounce for the beer. That's three times as many calories! The new Bud Light Mixxtail products -- Firewalker, Hurricane, Long Island Iced Tea -- they're 195 calories per 8 ounces.
In December, Sheila Cruz filed a lawsuit against Anheuser-Busch. She alleges that Bud Light Lime-A-Rita products claim to be low in calories, but actually contain more calories than any other product sold by Anheuser-Busch.
The lawsuit, which alleges that Anheuser-Busch deceptively concealed, omitted and misrepresented the calories in the products, seeks class status for anyone who has purchased any of the Bud Light Rita products since they were introduced in 2008. There are now six Rita flavors.
Start saving your receipts.
Anheuser-Busch has filed a motion to dismiss. It argues that every label at issue “accurately discloses” the average number of calories and carbohydrates that the products contain, as required by the U.S. Treasury’s Alcohol and Tobacco Tax and Trade Bureau, or TTB.
Let's pause here to explain why this story is in this column, where we talk about bourbon whiskey. Things like this would not happen if everyone would just drink bourbon whiskey as God intended, but that is neither here nor there, because some people do drink this stuff.
This story should matter to people who read this column for two reasons. First, the attorneys for Ms. Cruz argue that Anheuser-Busch is claiming 'safe harbor' because TTB approved their labels. This is the same claim Templeton, Tito's and other spirit brands have made in similar cases. That argument will be rejected. It already has been in a similar Florida case against Anheuser-Busch. The courts realize that TTB does not investigate or scrutinize label approval applications with sufficient diligence to warrant safe harbor protection.
However, Anheuser-Busch also argues that “The TTB has determined that the use of the term ‘light’ on a malt beverage label is not misleading or deceptive as long as the label contains a statement of average analysis disclosing the actual number of calories, carbohydrates, protein and fat the product contains. The labels at issue here complied with this TTB requirement."
In other words, it's not 'safe harbor,' but if your label complies with all of the rules, and discloses all pertinent information in the prescribed fashion, you should be okay. Remember that when you think about cheating on the state of distillation requirement, or the accurate age statement requirement.
The other reason this should matter to regular readers of this column is that this is the natural trajectory of a brand and every brand owner, whether he or she will admit it or not, dreams of this outcome. Not the lawsuit, but ownership of a brand that has reached the point where you can slap it on just about anything and people will buy it. Bud Light Triple Cheeseburger, anyone?
At this point 'Bud Light' is not a descriptive statement. The 'Light' part doesn't mean low in calories. Bud Light no longer means 'a lower calorie version of Budweiser,' as it did at one time. No, Bud Light has transcended its original meaning. Bud Light has become a brand.
How many products now bear the Jim Beam or Jack Daniel's brand name? Lots of different whiskey expressions as well as flavored whiskeys, pre-mixed cocktails, food, clothing. Too many to count with no end in sight.
Legally, all of these 'false advertising' cases will fail unless they hinge on actual deception. A subjective misinterpretation of vague 'claims' won't get very far. Templeton Rye, for example, may still have to answer for its past transgressions but, what do you know, it has a new label. It now says 'distilled in Indiana' and qualifies the 'Prohibition-Era Recipe' claim, among other things.
Will it be enough? That's up to the courts to decide. But if you're a fledgling spirits producer, you don't want to be next.
NOTE 6/30/15: I have since learned that the court dismissed this case on June 3rd and granted safe harbor protection. The distinction between this ruling and what I was talking about above is that, in fact, the Bud Light Lime-a-Rita labels comply with all TTB rules. I predict safe harbor will not be granted to Templeton because, even though their labels were approved, they did not comply with all TTB rules. The decision is here.