“Australian for [American] beer” isn’t deceptive, court rules

Nelson v. MillerCoors, LLC, 15-CV-7082, 2017 WL 1403343, —
F. Supp. 3d – (E.D.N.Y. Mar. 31, 2017)
The court dismissed Nelson’s complaint, invoking lots of
different consumer protection laws, based on Miller’s allegedly misleading
marketing of Foster’s Beer, “an Australian-style beer brand.”  Foster’s began exporting to the US in 1972,
and its can labels sported “multiple references to Australian culture and
symbols,” namely “an image of a Red Kangaroo, the national symbol of Australia,
and the Southern Cross constellation,” which is “a main component on the
Australian national flag.” In 2011, all Foster’s Beer sold in the United States
became domestically brewed. MillerCoors allegedly tricked consumers “into
believing they are purchasing the same [imported] product as they had in the
past precisely because it has maintained the same packaging for Foster’s over
time, despite the fact that the Foster’s sold in the United States is also
brewed domestically.  Nelson also pointed
to MillerCoors’s “overall marketing campaign, online and in advertisements,”
including: (1) the brand slogan “Foster’s Australian for Beer”; (2) the “How to
Speak Australian” television ads “depict[ing] Foster’s as being a product from
Australia by using Australian accents and scenery”; and (3) the official
website for Foster’s Beer, which, as of December 2015:
• Noted Foster’s Beer is made out
of hops that are only grown in three locations in Australia, and that “[t]hese
hops and an exclusive Foster’s yeast are what give Foster’s its bold refreshing
taste. The secret yeast doesn’t produce sulfur harshness that other beers can
exhibit, which means that Foster’s taste is never skunky and always
• Advertised, ‘ “Foster’s is
available in more than 150 countries, making it the largest-selling Australian
beer brand in the world,” ’ and
• Displayed “an outline of the
country of Australia, references to [the beer’s] roots and history in
Australia, and use of Australian symbols and phrases including ‘How to Speak
Australian,’ ‘Foster’s — Australian for Beer,’ and a video screen with images
of rugby players.”
This allegedly exploited consumers’ willingness “to pay a
premium for high quality, imported beer.”

The court found no reasonable consumer would be
deceived.  The label clearly discloses
the brewing location and isn’t hidden or in small text. “The idea that
consumers purchase products based on certain of a label’s statements or images
(e.g., pictures of a constellation and a kangaroo) but are blind to others
(e.g., a statement in plain English of where Foster’s Beer is brewed) in close
proximity on that label strains credibility.” 
Disclaimers fail to cure allegedly misleading representations on the
front of packaging “only where the alleged misrepresentation is clearly stated
and the disclaimer is exceedingly vague or requires consumers to make
inferences.”  The disclaimer here was
[Really? The first geographical words the consumer encounters is “Australia,”
twice.] Likewise, “© Oil Can Breweries, Fort Worth, TX” is displayed on the
Foster’s webpage, which was “inarguably clear as to the brewing location.” 

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