2:52pm PT by Ashley Cullins
Anheuser-Busch Must Pause Ad Campaign Amid Organic Seltzer Spat
The big game is behind us, but a Michelob Ultra Organic Seltzer Super Bowl spot is still brewing trouble for Anheuser-Busch.
On. Feb. 2, Oregon-based Suzie's Brewing Company sued the beer giant for false advertising, arguing it is incorrectly promoting its product as the first and only USDA-certified organic seltzer, and asked the court for an injunction that would stop the company from making that claim.
U.S. District Judge Michael H. Simon on Tuesday sided with the small business, beginning his 25-page temporary restraining order by asserting "truth matters."
He continues, "Whether the context is politics, science, or commercial advertising, dishonesty has consequences."
While Anheuser-Busch leaned into the exact language of its ad and argued that the word "national" was key (Michelob's product is available nationwide and Suzie's isn't), Simon finds the current wording deceptive.
After a primer on the USDA's Organic Foods Production Act, Simon explains that the certification program is national in scope and that's why the keyword is relevant. "The word 'national' appears prominently throughout OFPA," Simon writes in the TRO, which is embedded below. "From the description of one of its purposes as establishing 'national standards,' to the official name of the program itself (the 'National Organic Program'), ... the word "national" is consistently associated with the federal program that governs any mention, use, or display of the official USDA organic seal or label. Further, the word 'national' always immediately precedes the word 'organic' in all official references to the USDA’s National Organic Program.
So, it doesn't matter if Suzie's seltzer is only sold in half a dozen states, its certification is national — and it earned the distinction before Michelob did.
Simon found that a series of press releases, commercials and social media posts containing variations of the phrase "only national USDA certified organic hard seltzer" are literally false. Even if they weren't, he says they're likely to mislead consumers, and it's "highly unlikely" to be the result of careless copywriting. (He gives a detailed grammar lesson on misplaced modifiers.) Simon also doubts that it would really cost almost $38,000 to change the language, as the beer giant argued.
"All that Anheuser-Busch needs to do is change every instance of its advertising statements that Michelob ULTRA Hard Seltzer is 'the only' (or 'the first') 'national USDA certified organic hard seltzer' to read that Michelob ULTRA Hard Seltzer is the only (or the first) USDA certified organic hard seltzer distributed nationally," writes Simon. "If Anheuser-Busch prefers, because it is less expensive, it may simply delete the words 'only' and 'first.' There is nothing false about describing Michelob ULTRA organic hard seltzers as a 'national USDA certified organic hard seltzer.'"
An Anheuser-Busch spokesperson on Friday sent The Hollywood Reporter this statement in response to the decision: “The truth matters. Michelob ULTRA Organic Seltzer is the first USDA Certified Organic hard seltzer distributed nationally. The Court’s Order allows us to continue making this true statement.”