August 3, 2021

Volume XI, Number 215

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August 02, 2021

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USDA Certified Organic Ciders: One of a Kind?

Anheuser-Busch introduced its Michelob Ultra Organic Seltzer last month, advertising the beverage as the “First-of-its-kind organic option to the hard seltzer category,” “First USDA-certified organic seltzer,” “First National USDA Certified Organic Hard Seltzer,” and “First-ever national USDA certified organic hard seltzer.” Anheuser-Busch even aired commercials during the nationally televised, highly viewed NFL Division Championship games, along with the Super Bowl that took place on Sunday, February 7. But now the question before an Oregon Court is whether these advertisements imply that it is the first and only kind in the country.

USDA Certified Organic Ciders

Suzie’s Brewery Company brews and packages Organic Hard Seltzer in Pendleton, Oregon. Suzie’s Brewery first launched its product line in July 2020 after obtaining its national organic certification from the USDA’s National Organic Program in June 2020. This program grants businesses the right to display the “USDA Organic” seal on their products should the business meet specific national standards. It also allows certified businesses to represent in advertising that their products have received national USDA organic certification. While most alcoholic beverages are regulated by the Federal Tax and Trade Bureau (“TTB”), and sugar fermented seltzers by the Food and Drug Administration (“FDA”), the USDA governs any food or beverage products that bear the “organic” label.

On February 2, 2021, Suzie’s Brewery sued Anheuser-Busch for false advertising and filed a motion for a temporary restraining order that would keep it from airing ads that Suzie’s Brewery claims are false. “Suzie’s Seltzer also has a national USDA organic certification, and was available on the market well before ULTRA Seltzer,” argued the attorney for Suzie’s Brewery, “In addition, there are several other hard seltzer brands on the market that have USDA organic certification.” Suzie’s Brewery further claims multiple consumers and product distributors contacted them regarding the Michelob Ultra Organic Seltzer advertisements, confused about it being the “first” or “only” USDA Organic certified seltzer. Others questioned the veracity of Suzie’s Brewery and their seltzers being USDA Certified organic, since Anheuser-Busch had claimed to be the “only” one on the market.

One of a Kind?

“Using the bully-pulpit its massive national advertising budget allows, Anheuser-Busch has premiered a new false and misleading advertising campaign aimed at convincing health-conscious drinkers that its new organic hard seltzer is a unique, one-of-a-kind product. To be clear, it is not,” Suzie’s Brewery stated, “and Anheuser-Busch will continue to pursue its strategy of unfairly squeezing out its smaller competitors in the organic hard seltzer market (like Suzie’s Brewery) unless this court puts a stop to its misconduct.”

On February 9, 2021, Judge Michael H. Simon of the United States District Court for the District of Oregon granted the temporary restraining order requiring Anheuser-Busch to immediately stop falsely claiming that its product – Michelob ULTRA Organic Hard Seltzer – is the only or first national USDA certified organic hard seltzer on the market. “It is false for Anheuser-Busch to say this,” the judge said, “because Suzie’s Organic Hard Seltzer is certified organic under the USDA’s National Organic Program and was certified under the national program before Michelob Ultra was.” This temporary restraining order will remain in effect until June 2, 2021, when Judge Simon is scheduled to rule on a motion for preliminary injunction filed by Suzie’s Brewery.

©2021 Norris McLaughlin P.A., All Rights ReservedNational Law Review, Volume XI, Number 53
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About this Author

Brandon J. Lee Liquor Law Attorney Norris McLaughlin PA
Attorney

Brandon J. Lee concentrates his practice on liquor law with a passion for the craft beverage industry.

Brandon supports our extensive Liquor Law, Manufacturing, and Distribution Practice Group. He handles regulatory work with various states’ alcoholic beverage control, the Pennsylvania Liquor Control Board (PLCB), and the Federal Alcohol and Tobacco Tax and Trade Bureau (TTB). He assists in the drafting and review of distribution...

484-765-2216
Theodore Zeller Attorney Norris Law Firm
Member

Theodore J. Zeller III has extensive experience in liquor law, regulatory licensing, commercial transactions, real estate transactions, and litigation.

Chair of the firm’s Liquor Law Practice Group, Ted was lead counsel in a beer rights case brought against the world’s largest brewers and is now General Counsel to D.G. Yuengling & Son, Inc.

Ted’s lobbying efforts helped change various laws under the Pennsylvania Liquor Code. In 2010, Ted testified before the Senate Law and Justice Committee on behalf of Yuengling Brewery concerning House Bill 291, which addresses the...

(484) 765-2220
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