Blue Moon Looks Like A Craft Beer, But Is Not, Court Told

Source: Law360

By Emily Field

January 19, 2016

A beer enthusiast leading a proposed class action alleging MillerCoors LLC tricks drinkers into believing its Blue Moon beer is “craft-brewed” recently slammed the company’s argument that a California federal court had ruled that the beer’s Internet presence isn’t misleading, saying that the ruling is actually more narrow.

In a Jan. 15 opposition to MillerCoors’ motion to dismiss, beer aficionado Evan Parent said that the court’s October order isn’t as broad as the company makes out. Even though the judge ruled that a reasonable consumer viewing the MillerCoors website wouldn’t believe that Blue Moon is a craft beer, Parent says he never claimed he relied on that website when he bought the beer several years ago.

“Further, plaintiff relied only on the Blue Moon website (bluemoonbrewingcompany.com) and as MillerCoors points out, websites are not static,” Parent said. “As such, plaintiff has no specific knowledge as to when MillerCoors began listing Blue Moon as a craft beer on its own website.”

U.S. District Judge Gonzalo Curiel tossed Parent’s case in October on the grounds that MillerCoors doesn’t attempt to hide its ownership of the beer, but gave Parent a chance to amend his claims.

The judge held that MillerCoors’ use of the Blue Moon Brewing Company trade name – which is registered with the state as a fictitious business – was protected under the safe harbor doctrine because it was approved by federal regulators.

However, the judge didn’t find that “any and all” references to Blue Moon Brewing Company were protected under the safe harbor, and he expressly declined to address if consumers have constructive notice that MillerCoors owns Blue Moon based on its registration of the trade name, Parent argued.

Last month, the company urged the judge to dismiss the suit again, arguing that Parent is now trying to rehash old claims that MillerCoors uses packaging and advertising to convey that Blue Moon is a small, independent microbrew, but actually do nothing more than tell the story of Blue Moon’s true origin.

However, Parent contends that – even though its advertisements stop short of using the term “craft beer” – MillerCoors has engaged in a decades-long campaign to falsely portray Blue Moon as such in order to sell the beer at a higher price, according to the Jan. 15 filing.

“Coupled with its craft beer price, its placement in the craft beer section, and the fact that it is openly advertised and sold as a craft beer in non-retail venues, MillerCoors’ depiction of Blue Moon creates the distinct, and by design, impression that Blue Moon is an independently brewed craft beer,” Parent said.

Since April, Parent has accused MillerCoors – the second largest brewing company in the U.S. – of violating California’s Consumer Legal Remedies Act and laws over deceptive and misleading advertising and unfair competition by leaving the MillerCoors name out of Blue Moon products and advertisements, saying he was duped by the term “Artfully Crafted” on the product’s label, as well as advertising that depicts the beer as one brewed in small batches by an independent brewer, Keith Villa, who actually works for MillerCoors.

MillerCoors argues that the national distribution of Blue Moon supports its contention that no reasonable consumer would believe that the beer is brewed at the small brewery shown in its advertising, but Parent says that this is irrelevant because his amended complaint only refers to the sales of the beer in California.

Additionally, national chain restaurants – including ones in California – often sell craft beers, such as Stone IPA and Fat Tire, Parent said, and his complaint identifies restaurants where Blue Moon is sold as a craft beer.

“Under California’s consumer protection laws, consumers are not required to look beyond misleading representations to discover and assess the truthfulness of contrary representations,” Parent said.

Representatives for the parties didn’t immediately respond to requests for comment on Tuesday.

MillerCoors is represented by Julie L. Hussey, David T. Biderman, Julie E. Schwartz and Lauren B. Cohen of Perkins Coie LLP.

Parent is represented by James M. Treglio, R. Craig Clark, Dawn M. Berry and Veronika Snoblova of Clark & Treglio.

The case is Evan Parent et al. v. MillerCoors LLC et al., case number 3:15-cv-01204, in the U.S. District Court for the Southern District of California.