D's consumer survey defeats class action about relevance of geographic origin of water for brewing beer

Peacock v. Pabst Brewing Co., LLC, 2024 WL 1160687, No. 2:18-cv-00568 DJC CKD (E.D. Cal. Mar. 18, 2024)

Interesting defense-side use of surveys in this consumer protection case. Peacock alleged that Pabst violated consumer protection law by marketing “The Original Olympia Beer” as using naturally filtered, artisan water from Tumwater, Washington (a suburb of Olympia, Washington) “despite the product being brewed elsewhere in the country using lower quality water and brewing methods.” The court granted summary judgment for inability to prove deceptiveness.

Peacock identified, among other things, Pabst’s “It’s the Water” slogan and the depiction of the “unique waterfalls from the (now) closed brewery from the Olympia area” on the Olympia Beer packaging, on its website, and on social media.

On deceptiveness, Pabst argued that Peacock didn’t designate any expert witnesses or other evidence to show how consumers interpreted the label, while Pabst offered an expert opining on a consumer survey. Peacock responded that the evidence of deceptiveness included Pabst’s “own testimony about the point and method of showing the label to consumers in the store on shelves, the ‘historical’ references described by Defendant’s own witness, and the labelling and marketing of the beer itself.”

To prevail under California’s UCL, the plaintiff must produce evidence that shows “a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.” This can be done with “surveys and expert testimony regarding consumer assumptions and expectations” but these are not always necessary as in some situations “anecdotal evidence may suffice[.]” But evidence of just “a few isolated examples of actual deception” is not sufficient. A plaintiff can’t win just by “describing his or her own personal, alleged misunderstanding or confusion.”

Pabst offered two surveys: one for prior Olympia Beer purchasers to determine their reasons for purchasing Olympia Beer, and another where respondents were shown one of two versions of an Olympia Beer can with one version being as it exists now and the “control” being a version without the “challenged elements” of the label.

Of the 185 respondents to the first survey, no respondent mentioned the water used to brew Olympia Beer as their reason for first purchasing Olympia Beer. Only 10 respondents (roughly 5% of total respondents) indicated the “geographic origin of the beer” as part of their reasoning for their first purchase. The results for subsequent purchasers were similar.

In the second survey, only 4, or approximately 2%, of the 202 respondents who were shown the actual Olympia Beer packaging mentioned “the source or origin of the water used to brew the beer as a message conveyed by the product’s label.” Two of the 196 respondents in the control group, who were shown the label without the challenged elements, also “mentioned the source or origin of the water[ ]” thus indicating that “there [was] no meaningful difference between the test and control condition ....” (Id.) Similarly, a roughly equal percentage of respondents from the two groups “mentioned that the Pacific Northwest, Washington, or Olympia/Olympia Falls was a message conveyed by the label[,]” and there was only a 3% difference between the control and test groups (62% for the test group and 59% for the control group) in respondents who thought “Olympia Beer was brewed with artesian water from Olympia, Washington.”

Given this evidence, Pabst met its initial burden of establishing the absence of any genuine issues of material fact, and Peacock’s evidence wasn’t enough. The evidence from Pabst’s witnesses about “historical” references indicated that the reasons for the slogan were historical, but they also testified that they didn’t believe that consumers considered the source of the water.

Likewise, the actual content of the label and marketing might be relevant background information “but it does not create a genuine dispute over whether those elements are likelihood of those elements to confound an appreciable number of prudent purchasers exercising ordinary care.” Peacock’s own testimony was relevant, but only anecdotal and, without anything else, insufficient.