A federal judge in Oregon concluded that describing the Michelob Ultra Organic Seltzer as “the only rigid organic seltzer certified by the USDA” is false and is likely to mislead consumers.
The big game is behind us, but an announcement by Michelob Ultra Organic Seltzer in the Super Bowl is still causing problems for Anheuser-Busch.
On. February 2, Oregon-based Suzie’s Brewing Company sued the beer giant for misleading advertising, arguing that it was incorrectly promoting its product as the first and only USDA certified organic seltzer, and asked the court for an injunction that would prevent the company to make that claim.
United States District Judge Michael H. Simon on Tuesday supported the small business by initiating his temporary 25-page restraining order stating “the truth matters”.
He continues: “Whether the context is political, scientific or commercial, dishonesty has consequences”.
While Anheuser-Busch leaned towards the exact language of its ad and argued that the word “national” was the key (Michelob’s product is available nationwide and Suzie’s is not), Simon finds the current text misleading.
After a primer on the USDA Organic Food Production Act, Simon explains that the certification program is national and that is why the keyword is relevant. “The word ‘national’ appears prominently throughout OFPA,” Simon writes in the TRO, which is embedded below. “From describing one of its purposes as setting ‘national standards’, to the official name of the program itself (the ‘National Organic Program’), … the word” national “is consistently associated with the federal program that governs any mention , use or display of the official USDA organic seal or label, and the word ‘national’ always immediately precedes the word ‘organic’ in all official references to the USDA National Organic Program.
So it doesn’t matter if Suzie’s seltzer is only sold in half a dozen states, its certification is national – and she won the distinction before Michelob.
Simon found that a series of press releases, commercials and social media posts containing variations of the phrase “only rigid organic seltzer with USDA national certification” are literally untrue. Even if they weren’t, he says they are likely to mislead consumers and is “highly unlikely” to be the result of careless writing. (He gives a detailed grammar lesson on misplaced modifiers.) Simon also doubts that it would actually cost nearly $ 38,000 to change the language, as the beer giant argued.
“All Anheuser-Busch needs to do is to change each instance of its advertising statements that Michelob ULTRA Hard Seltzer is ‘the only’ (or ‘the first’) ‘national rigid organic seltzer certified by the national USDA’ to read that Michelob ULTRA Hard Seltzer is the only (or the first) USDA certified organic seltzer distributed nationwide, “writes Simon. “If Anheuser-Busch prefers, because it is cheaper, it can simply exclude the words ‘only’ and ‘first’. There is nothing wrong with describing Michelob ULTRA organic seltzer as a ‘USDA certified organic seltzer’ “.