Peacock v. Pabst
Brewing Co., LLC, 2024 WL 1160687, No. 2:18-cv-00568 DJC CKD (E.D. Cal. Mar.
18, 2024)
Interesting
defense-side use of surveys in this consumer protection case. Peacock alleged
that Pabst violated consumer protection law by marketing “The Original Olympia
Beer” as using naturally filtered, artisan water from Tumwater, Washington (a
suburb of Olympia, Washington) “despite the product being brewed elsewhere in
the country using lower quality water and brewing methods.” The court granted
summary judgment for inability to prove deceptiveness.
Peacock identified,
among other things, Pabst’s “It’s the Water” slogan and the depiction of the
“unique waterfalls from the (now) closed brewery from the Olympia area” on the
Olympia Beer packaging, on its website, and on social media.
On deceptiveness, Pabst
argued that Peacock didn’t designate any expert witnesses or other evidence to
show how consumers interpreted the label, while Pabst offered an expert opining
on a consumer survey. Peacock responded that the evidence of deceptiveness
included Pabst’s “own testimony about the point and method of showing the label
to consumers in the store on shelves, the ‘historical’ references described by
Defendant’s own witness, and the labelling and marketing of the beer itself.”
To prevail under California’s
UCL, the plaintiff must produce evidence that shows “a likelihood of
confounding an appreciable number of reasonably prudent purchasers exercising
ordinary care.” This can be done with “surveys and expert testimony regarding
consumer assumptions and expectations” but these are not always necessary as in
some situations “anecdotal evidence may suffice[.]” But evidence of just “a few
isolated examples of actual deception” is not sufficient. A plaintiff can’t win
just by “describing his or her own personal, alleged misunderstanding or
confusion.”
Pabst offered two
surveys: one for prior Olympia Beer purchasers to determine their reasons for
purchasing Olympia Beer, and another where respondents were shown one of two
versions of an Olympia Beer can with one version being as it exists now and the
“control” being a version without the “challenged elements” of the label.
Of the 185
respondents to the first survey, no respondent mentioned the water used to brew
Olympia Beer as their reason for first purchasing Olympia Beer. Only 10
respondents (roughly 5% of total respondents) indicated the “geographic origin
of the beer” as part of their reasoning for their first purchase. The results for
subsequent purchasers were similar.
In the second
survey, only 4, or approximately 2%, of the 202 respondents who were shown the
actual Olympia Beer packaging mentioned “the source or origin of the water used
to brew the beer as a message conveyed by the product’s label.” Two of the 196
respondents in the control group, who were shown the label without the
challenged elements, also “mentioned the source or origin of the water[ ]” thus
indicating that “there [was] no meaningful difference between the test and
control condition ….” (Id.) Similarly, a roughly equal percentage of
respondents from the two groups “mentioned that the Pacific Northwest,
Washington, or Olympia/Olympia Falls was a message conveyed by the label[,]”
and there was only a 3% difference between the control and test groups (62% for
the test group and 59% for the control group) in respondents who thought
“Olympia Beer was brewed with artesian water from Olympia, Washington.”
Given this evidence,
Pabst met its initial burden of establishing the absence of any genuine issues
of material fact, and Peacock’s evidence wasn’t enough. The evidence from Pabst’s
witnesses about “historical” references indicated that the reasons for the slogan
were historical, but they also testified that they didn’t believe that
consumers considered the source of the water.
Likewise, the actual
content of the label and marketing might be relevant background information “but
it does not create a genuine dispute over whether those elements are likelihood
of those elements to confound an appreciable number of prudent purchasers
exercising ordinary care.” Peacock’s own testimony was relevant, but only anecdotal
and, without anything else, insufficient.
from Blogger http://tushnet.blogspot.com/2024/03/ds-consumer-survey-defeats-class-action.html
Rebecca Tushnet 