Hard kombucha brewery still faces false advertising class action, judge rules

SAN DIEGO (CN) — Claims that a brewery deceives its customers by marketing its line of alcoholic canned kombucha beverages as healthy remain in play in a deceptive marketing class action, though a federal judge in San Diego tossed a request for an injunction Monday.

According to Albert Renn, Otay Lakes Brewery — which markets Nova Kombucha, a line of hard, alcoholic canned kombucha in a wide variety of different flavors — prints promotional slogans like “Some things in life are good for you, other things in life are fun. They don’t meet each other very often, but when they do, life gets pretty brilliant, pretty quickly," on its hip, colorful, maximalist graphic designed cans.

Other slogans state “Nova Easy Kombucha is one of those rare things where health, balance and goodness get a lot more interesting," right above the surgeon general’s warning alcohol warning label, Renn said in a June 2023 class action.

Renn claimed that those slogans fraudulently entice consumers to buy Nova Kombucha because they depict the product as healthy, and good for you, when in fact, Renn claimed, drinking alcohol, in even small amounts, harms your health.

Thought to be originally from China, where it spread into Russia and Eastern Europe, kombucha is fermented tea that is often promoted and advertised as having health benefits. Normal kombucha, though not advertised as containing alcohol, usually has around 0.5% from the fermentation process. Hard kombucha is kombucha that a manufacturer has added alcohol to boost its alcohol by volume anywhere between 4% to 8%.  

Because Renn’s complaint hinges on all alcohol consumption being unhealthy, Otay Lakes Brewery had argued that he lacks standing to bring the lawsuit because he can’t establish a likelihood of future harm, because he knows their product contains alcohol.

Renn responded that he would like to purchase Nova Kombucha in the future, he just can’t rely on the company’s labeling when comparing it to the relative healthiness of similar hard kombuchas. He would buy the drink again, Renn added, if the health and wellness statements on the can were true.       

U.S. District Judge Gonzalo Curiel, a Barack Obama appointee, denied injunctive relief to the plaintiff, writing that couldn't establish the possibility of future repeated injury, based on Renn's own representations about the drinks' alcohol content.

“Plaintiff cannot plausibly allege he will purchase the products in the future if labeled correctly. In other words, even if the health and wellness representations were removed, he will not likely purchase the products since he was looking for a 'healthy' kombucha drink,” Curiel wrote in Monday’s order. 

But Curiel denied Otay Lake Brewery’s motion to outright dismiss Renn’s claim that the company’s slogan and mottos on their cans are fraudulent under California consumer fraud laws. 

The company argued that their slogans about life getting “pretty brilliant, pretty quickly,” and things getting “a lot more interesting” are puffery — advertising language that no reasonable person would take seriously. Renn countered that phrases like “health, balance” and “good for you” are health-related messages that consumers rely on to make decisions about whether or not they’re going to purchase a product, an interpretation that Curiel agreed with.   

“Here, even though the surgeon general’s warning is right below the challenged statements, the court concludes that this is not one of the ‘rare situations’ where granting a motion to dismiss is appropriate because it cannot conclude, as a matter of law, that no reasonable consumer would be misled by the labels at issue,” Curiel wrote. 

Attorneys for Renn did not immediately respond to requests for comment, and attorneys for Otay Lakes Brewery declined to comment on Curiel's order.

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