Anheuser-Busch introduced its Michelob Ultra Organic Seltzer last month, advertising the beverage as the “First-of-its-kind organic option to the hard seltzer category,” “First USDA-certified organic seltzer,” “First National USDA Certified Organic Hard Seltzer,” and “First-ever national USDA certified organic hard seltzer.” Anheuser-Busch even aired commercials during the nationally televised, highly viewed NFL Division Championship games, along with the Super Bowl that took place on Sunday, February 7. But now the question before an Oregon Court is whether these advertisements imply that it is the first and only kind in the country.
USDA Certified Organic Ciders
Suzie’s Brewery Company brews and packages Organic Hard Seltzer in Pendleton, Oregon. Suzie’s Brewery first launched its product line in July 2020 after obtaining its national organic certification from the USDA’s National Organic Program in June 2020. This program grants businesses the right to display the “USDA Organic” seal on their products should the business meet specific national standards. It also allows certified businesses to represent in advertising that their products have received national USDA organic certification. While most alcoholic beverages are regulated by the Federal Tax and Trade Bureau (“TTB”), and sugar fermented seltzers by the Food and Drug Administration (“FDA”), the USDA governs any food or beverage products that bear the “organic” label.
On February 2, 2021, Suzie’s Brewery sued Anheuser-Busch for false advertising and filed a motion for a temporary restraining order that would keep it from airing ads that Suzie’s Brewery claims are false. “Suzie’s Seltzer also has a national USDA organic certification, and was available on the market well before ULTRA Seltzer,” argued the attorney for Suzie’s Brewery, “In addition, there are several other hard seltzer brands on the market that have USDA organic certification.” Suzie’s Brewery further claims multiple consumers and product distributors contacted them regarding the Michelob Ultra Organic Seltzer advertisements, confused about it being the “first” or “only” USDA Organic certified seltzer. Others questioned the veracity of Suzie’s Brewery and their seltzers being USDA Certified organic, since Anheuser-Busch had claimed to be the “only” one on the market.
One of a Kind?
“Using the bully-pulpit its massive national advertising budget allows, Anheuser-Busch has premiered a new false and misleading advertising campaign aimed at convincing health-conscious drinkers that its new organic hard seltzer is a unique, one-of-a-kind product. To be clear, it is not,” Suzie’s Brewery stated, “and Anheuser-Busch will continue to pursue its strategy of unfairly squeezing out its smaller competitors in the organic hard seltzer market (like Suzie’s Brewery) unless this court puts a stop to its misconduct.”
On February 9, 2021, Judge Michael H. Simon of the United States District Court for the District of Oregon granted the temporary restraining order requiring Anheuser-Busch to immediately stop falsely claiming that its product – Michelob ULTRA Organic Hard Seltzer – is the only or first national USDA certified organic hard seltzer on the market. “It is false for Anheuser-Busch to say this,” the judge said, “because Suzie’s Organic Hard Seltzer is certified organic under the USDA’s National Organic Program and was certified under the national program before Michelob Ultra was.” This temporary restraining order will remain in effect until June 2, 2021, when Judge Simon is scheduled to rule on a motion for preliminary injunction filed by Suzie’s Brewery.
For information regarding national and state liquor law matters or general manufacturing and distribution advice, please contact our Liquor Law, Licensing, Manufacturing, and Distribution Practice Group: Liquor Law Department Chair Theodore J. Zeller III, Esquire (firstname.lastname@example.org); David C. Berger, Esquire (email@example.com) for Pennsylvania and New Jersey retail and manufacturing licensing; or contact our offices at 610-391-1800.