"Australian for [American] beer" isn't deceptive, court rules

Nelson v. MillerCoors, LLC, 15-CV-7082, 2017 WL 1403343, -- F. Supp. 3d – (E.D.N.Y. Mar. 31, 2017)

The court dismissed Nelson’s complaint, invoking lots of different consumer protection laws, based on Miller’s allegedly misleading marketing of Foster’s Beer, “an Australian-style beer brand.”  Foster’s began exporting to the US in 1972, and its can labels sported “multiple references to Australian culture and symbols,” namely “an image of a Red Kangaroo, the national symbol of Australia, and the Southern Cross constellation,” which is “a main component on the Australian national flag.” In 2011, all Foster’s Beer sold in the United States became domestically brewed. MillerCoors allegedly tricked consumers “into believing they are purchasing the same [imported] product as they had in the past precisely because it has maintained the same packaging for Foster’s over time, despite the fact that the Foster’s sold in the United States is also brewed domestically.  Nelson also pointed to MillerCoors’s “overall marketing campaign, online and in advertisements,” including: (1) the brand slogan “Foster’s Australian for Beer”; (2) the “How to Speak Australian” television ads “depict[ing] Foster’s as being a product from Australia by using Australian accents and scenery”; and (3) the official website for Foster’s Beer, which, as of December 2015:

• Noted Foster’s Beer is made out of hops that are only grown in three locations in Australia, and that “[t]hese hops and an exclusive Foster’s yeast are what give Foster’s its bold refreshing taste. The secret yeast doesn’t produce sulfur harshness that other beers can exhibit, which means that Foster’s taste is never skunky and always Australian,”

• Advertised, ‘ “Foster’s is available in more than 150 countries, making it the largest-selling Australian beer brand in the world,” ’ and

• Displayed “an outline of the country of Australia, references to [the beer’s] roots and history in Australia, and use of Australian symbols and phrases including ‘How to Speak Australian,’ ‘Foster’s — Australian for Beer,’ and a video screen with images of rugby players.”

This allegedly exploited consumers’ willingness “to pay a premium for high quality, imported beer.”

The court found no reasonable consumer would be deceived.  The label clearly discloses the brewing location and isn’t hidden or in small text. “The idea that consumers purchase products based on certain of a label’s statements or images (e.g., pictures of a constellation and a kangaroo) but are blind to others (e.g., a statement in plain English of where Foster’s Beer is brewed) in close proximity on that label strains credibility.”  Disclaimers fail to cure allegedly misleading representations on the front of packaging “only where the alleged misrepresentation is clearly stated and the disclaimer is exceedingly vague or requires consumers to make inferences.”  The disclaimer here was explicit: “BREWED AND PACKAGED UNDER THE SUPERVISION OF FOSTER’S AUSTRALIA LTD, MELBOURNE, AUSTRALIA BY OIL CAN BREWERIES, ALBANY GA AND FORT WORTH TX.” [Really? The first geographical words the consumer encounters is “Australia,” twice.] Likewise, “© Oil Can Breweries, Fort Worth, TX” is displayed on the Foster’s webpage, which was “inarguably clear as to the brewing location.”