A federal judge in Oregon has found that describing Michelob Ultra Organic Seltzer as the “only national USDA-certified organic hard seltzer” is both wrong and possible in misleading consumers.
The big game is behind us, but a Michelob Ultra Organic Seltzer Super Bowl spot still has problems for Anheuser-Busch.
On. Suzie’s Brewing Company, based in Oregon, sued the beer giant on February 2 for false advertising, arguing that it was wrongly promoting its product as the first and only USDA-certified organic seltzer, and asked the court for an order the company would prevent the that claim.
U.S. District Judge Michael H. Simon put him on the side of the small business on Tuesday and began his 25 temporary restraining order by leading ‘truth cases’.
He continues: “Whether the context is politics, science or commercial advertising, dishonesty has consequences.”
While Anheuser-Busch leaned in the exact language of his ad, arguing that the word ‘national’ is the key (Michelob’s product is available nationwide and Suzie’s not), Simon finds the current wording misleading.
After an introduction to the USDA’s Organic Foods Production Act, Simon explains that the certification program is nationwide and therefore the keyword is relevant. “The word ‘national’ appears prominently throughout OFPA,” writes Simon in the TRO, which is embedded below. “From the description of one of the objectives of 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. which governs any mention, use or display of the official USDA organic seal or label Furthermore, the word ‘national’ always precedes the word ‘organic’ in all official references to the USDA’s national organic program.
So it does not matter if Suzie’s seltzer is only sold in half a dozen states, its certification is national – and he deserved the distinction before Michelob did.
Simon found that a series of press releases, advertisements and social media reports containing variations of the phrase “only national USDA certified organic hard seltzer” are literally false. Even if it was not, he says they are likely to mislead consumers, and this is ‘highly unlikely’ due to careless copywriting. (He gives a detailed grammar lesson on incorrect modifiers.) Simon also doubts that it really costs nearly $ 38,000 to change the language, as the beer giant has argued.
‘All Anheuser-Busch has to do is change every case of ad statements that Michelob ULTRA Hard Seltzer is’ the only’ (or ‘the first’) ‘national USDA-certified organic hard seltzer’ who has read that Michelob ULTRA Hard Seltzer is the only (or first) USDA-certified organic hard seltzer distributed nationwide, ‘writes Simon. “If Anheuser-Busch prefers it because it’s cheaper, it can simply delete the words ‘only’ and ‘first’. ‘There is nothing wrong with describing Michelob ULTRA organic hard seltzers as a’ national USDA certified organic hard seltzer ‘not.’