“Truth matters,” U.S. District Court Judge Michael H. Simon wrote in issuing a temporary restraining order against Anheuser-Busch for its advertisements for Michelob Ultra Hard Seltzer. The ads say the seltzer is “the only” or “the first” “national USDA certified hard seltzer.”
But, Simon wrote, that’s not truthful. It’s also deceptive and hurts a competitor, Suzie’s Brewery. Both producers received USDA Organic certification. But Suzie’s received it first. So it’s not truthful for A-B to claim to be “the only” or “the first” “national USDA certified organic hard seltzer.”
What is truth, Simon found, is that Michelob Ultra Hard Seltzer is “the only” or “the first” USDA certified organic hard seltzers that are distributed nationally.
In his opinion, Simon noted that Suzie’s Brewery “does not object to Defendants stating in their television or radio commercials, press releases, or other advertising that Michelob Ultra Organic Hard Seltzer is the ‘only national hard seltzer that is USDA certified organic’ or is ‘the first nationally distributed USDA certified organic hard seltzer.”
But Suzie’s does take issue with A-B’s claim the product is the “only national USDA certified organic hard seltzer” or the “first-ever ntional USDA certified organic hard seltzer, or that A-B is “bringing an innovative, first-of-its-kind organic option to the hard seltzer category.”
The judge noted the Anheuser-Busch ad that contained the deceptive language first aired during the NFL championship playoff game. “Almost immediately after (that), several consumers contacted Suzie’s Brewery, questioning the veracity of Suzie’s organic certification.” Also, Simon wrote, Suzie’s sales director was recently contacted by one of the distributors of Suzie’s Organic Hard Seltzer who asked if the brand was “really USDA-certified organic” after that distributor saw a commercial stating the Michelob Ultra was “the first and only USDA certified organic hard seltzer.” He also cited a story in USA Today and commented: “the fact a presumeably knowledgeable journalist could be misled by Anheuser-Busch’s representatins is additional circumstantial evidence that less sophisticated consumers were and can be deceived.”