CINCINNATI (CN) – Allegations that Anheuser-Busch InBev intentionally weakens its brew failed to stir much emotion from the 6th Circuit on Tuesday.
“[Consumers are getting] the same buzz from 21 beers but should be getting it from 20 beers,” Judge Danny Julian Boggs said, casually boiling down the class’s arguments,
Joshua Boxer, an attorney for the consumers whose class actions were consolidated in Cleveland, told the court that the world’s largest brewer treats the federal tolerance regulation for alcohol by volume (ABV) “as a piggy bank, not as a cushion.”
Federal regulations set forth by the Tobacco Tax and Trade Bureau (TTB) allow for a 0.3 percent variation between the ABV listed on a product and the actual ABV of the beverage.
The consumers claim Anheuser-Busch takes advantage of the statute by intentionally watering down its Budweiser and various other malt beverages to end up at 0.3 percent ABV lower than what the labels say.
Boxer admitted that one would expect some kind of variance in the ABV, but said a brewer should “shoot for what is on the label” when producing the beer.
A federal judge tossed the complaint last year, saying the proper sounding board for the consumers is the regulatory body they can lobby for tighter controls.
Ed Crane, attorney for Anheuser-Busch, praised the dismissal at the hearing.
“The lower court gave the statute its plain meaning,” and “nothing in the record support[s] the definition of the word ‘tolerance’ put forth by the plaintiffs,” Crane said.
Noting that the TTB statute sets forth a “purely quantitative tolerance,” Crane insisted that any beer produced within 0.3 percent of the ABV listed on the label is compliant.
The attorney also cited links on the TTB website that display yearly, randomized tests of beer, liquor and wine ABV used to ensure statutory compliance.
Boxer countered these studies in his rebuttal by pointing out that manufacturers are kept anonymous in the results, and that the TTB merely institutes a “pass/fail” system that “does not deter Anheuser-Busch” from watering down its beers.
He cited the recent Supreme Court case POM Wonderful v. Coca-Cola to persuade the judges that the case deserves another shot.
In POM, the Supreme Court voted 8-0 to revive deceptive-trade-practice claims against Coke regarding the latter’s “pomegranate blueberry” drink, which contains only 0.3 percent pomegranate juice.
Crane dismissed the connection, saying that the two federal statutes discussed in that case are irrelevant to the case against his macrobrewery client.
Also on the appellate panel Tuesday were Judges Damon Keith – who was notably silent throughout the entire proceeding – and Gilbert Merritt Jr.
No timetable has been set for a decision by the panel.
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