8:04pm PT by Ashley Cullins
Organic Seltzer Battle Brewing Over Anheuser-Busch Super Bowl Spot
Does describing a boozy beverage as the only “national hard seltzer that is USDA certified organic” imply that it's the first and only of its kind in the country? That's the question before an Oregon federal judge in a brewing battle over a Super Bowl spot.
Suzie's Brewery Company on Tuesday 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 claims are false.
"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," writes attorney Daniel C. Peterson in the complaint. "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."
Pendleton, Oregon-based Suzie's launched in the fall of 2019 after its founders saw a gap in the market. The scions of an 18th-century mustard manufacturer saw hard seltzer and healthier booze were both trending upward, but no one had capitalized by combining them yet. The following summer, amid the pandemic, Suzie's got the official USDA Organic stamp and went to market.
Last month, beer giant Anheuser-Busch launched Michelob Ultra Organic Seltzer. To be clear, there's certainly no hole in the market for hard seltzer now. See: White Claw, Wild Basin, Maha — and one from Crook & Marker that recently released a risqué OnlyFans spoof ad for Valentine's Day. It's not so much the competition Suzie's takes issue with as some of the claims that have been made in its advertising. Michelob's ads describe the product as the first and only of its kind.
During the NFL playoffs, Anheuser-Busch ran a TV ad touting the “only national USDA organic certified seltzer.” Suzie's caught wind that Anheuser-Busch is planning to air an ad during the Super Bowl and sued in an effort to stop approximately 100 million U.S. football fans from seeing it.
"Suzie’s Seltzer, also has a national USDA organic certification, and was available on the market well before ULTRA Seltzer," argues Peterson. "In addition, there are several other hard seltzer brands on the market that have USDA organic certification."
The brewery says the ads are causing confusion among customers and distributors and it's suing for false advertising and unfair competition. Suzie's also filed a TRO that argues it is likely to prevail on its claims and it will be irreparably harmed if the ad continues to run.
In an opposition filed Thursday, attorneys for Anheuser-Busch argue that their ads are true because no competing organic hard seltzer can match its distribution "across the nation, both in terms of geographic scope and intensity of distribution within the states."
"As a result, it is correct for Ultra Seltzer to say (as it has) that it is the first “national hard seltzer that is USDA certified organic,'" argues attorney Shannon Armstrong. "ULTRA Seltzer does not say it was the first hard seltzer of any kind to be USDA certified organic. A-B would never make such claim–even comparing ULTRA Seltzer to its own brands. A-B sells another brand of hard seltzer, Maha, that was certified organic in November 2019, before ULTRA Seltzer."
Armstrong notes that Maha was not only certified as organic four months before Suzie's but is distributed in twice as many states. "Suzie’s is sold in six states, and even in those states it has such limited availability that it could never claim to be a 'national hard seltzer,'" argues Armstrong, who later quotes the Cambridge English Dictionary definition of "national."
While Anheuser-Busch is quick to say that doesn't make Suzie's an inferior product, and some people may prefer local or regional brands, it also notes that the small brewery can't use its size against it in this case.
"ULTRA Seltzer’s advertising has a simple message: no other national hard seltzer is organic; no other organic hard seltzer is national," writes Armstrong. "This message is true."
Anheuser-Busch argues that the truth of its ads means Suzie's can't possibly show a likelihood of succeeding on the merits of its claim and can't justify a TRO — especially since its Super Bowl ad, a seemingly star-studded spot that's embedded below, doesn't use the language at issue here. Further, the brand argues that it has already spent nearly $600,000 developing and distributing ads that would be barred by the TRO and it's the one that faces irreparable harm in the situation.
A hearing is currently scheduled for Monday, the day after the Super Bowl. Meanwhile, the Anheuser-Busch ad that’s expected to draw even more attention is “Let’s Grab a Beer,” a collaboration by David Fincher and Atticus Ross.