PORTLAND, Ore. (CN) — Commercials proclaiming Michelob Ultra organic seltzer as the only certified organic hard seltzer are “false and deceptive,” a federal judge ruled Tuesday.
In TV and radio ads that aired over the last couple of weeks, Anheuser-Busch called its Michelob Ultra organic seltzer the “first of its kind, organic option to the market, the “first ever” and the “only” USDA-certified organic seltzer.” Some of those ads ran during the NFL playoffs in late January.
Over the weekend, Anheuser-Busch changed plans to run one during the Super Bowl, as a nod to the current litigation. But it did launch targeted advertising via Instagram influencers who promote products to their large followings on the social media site. The claim went further, apparently convincing a journalist who wrote in a January article for USA Today that Michelob Ultra Organic Seltzer is “the first USDA-certified organic hard seltzer.”
But Pendleton, Oregon-based Suzie’s Brewery Company has been selling USDA-certified organic hard seltzer since June 2020 — and would have done so sooner had it not waited to complete USDA certification before launching its new product. Suzie’s claims consumers and even a distributor have complained since Anheuser-Busch’s ads began to air, questioning whether the hard seltzer really is certified organic.
Suzie’s, which currently sells its organic hard seltzer in six states, sued Feb. 2, claiming Anheuser-Busch was trying to squeeze out smaller competitors. Michelob Ultra hard seltzer is currently available in every state except Utah, which has unique and complex regulations for such products.
In court documents and at a hearing on Monday, Anheuser-Busch claimed the dispute was merely an issue of grammar. The brewer’s lawyers argued the ads meant Michelob Ultra was the only certified organic seltzer available nationwide, not the only one certified organic by the U.S. Department of Agriculture.
An attorney for Suzie’s questioned that logic.
“They claim they meant first one in national commerce,” attorney Daniel Peterson with Cosgrave Vergeer said at Monday’s hearing. “That’s just simply not how grammar works and not how the public is perceiving the matter.”
U.S. District Judge Michael Simon took Anheuser-Busch attorney James Bennett to task over that logic.
“I have no idea what is a national seltzer,” Judge Simon said. “I know what a delicious seltzer is, I know what a hard seltzer is, I know what a low-calorie or no-calorie seltzer is. I know what a flavored seltzer is. That’s what I’m assuming you’re saying. But there seems to me a big difference between saying that a seltzer is distributed nationally versus calling a seltzer ‘national’ and expecting people to understand that what you mean by that is that it is distributed nationally.”
Peterson said Suzie’s has no quarrel with ads characterizing the Michelob seltzer as the only organic hard seltzer that is nationally distributed.
“If Anheuser-Busch had been advertising this using the actual words they now claim they meant to use — nationally available, nationally distributed, we would not have any problem.”
Peterson said the statements in the ads are “literally false.” He asked Simon to issue a temporary restraining order, barring Anheuser-Busch from airing similar statements in its commercials.
“Any time you’re dealing with these issues of reputation, it certainly can cause harm,” Peterson said. “It can be difficult to dig out of the hole Suzie’s has been put in.”
On Tuesday, Simon issued a ruling aligned with Peterson’s request. Simon called “false and deceptive” Anheuser-Busch’s claims that it is “the first” or “the only” certified organic hard seltzer.
He issued a temporary restraining order barring the company from running ads using the disputed claims. The order will remain in place for 28 days. Before it expires, the parties will hold a hearing for preliminary injunction to determine a longer-term solution.
“Truth matters,” Simon wrote. “Whether the context is politics, science, or commercial advertising, dishonesty has consequences.”
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