Customers and Regulators Claim “Liar! Liar!”
Craft beverage producers should take note of a series of recent lawsuits and regulatory actions concerning allegedly deceptive advertising, including listing of ingredients on the label. In one recent case, Quaker Instant Oatmeal was the target because it advertised “maple and brown sugar” on the packaging. Purists are saying that if it in fact contains no maple syrup or maple sugar from a maple tree, it should not be advertised as “maple.” The consumer alleges he was deceived because of the image of a maple syrup jug on the label, leading him to believe actual maple syrup was used rather than an artificial flavoring. The consumer further goes on to argue that if he knew it was artificial he never would have purchased the product. He was looking for not only the better taste from pure maple syrup, but also the health benefits from pure maple products. The case is Darren Eisenlord v. The Quaker Oats Co. et al., case number 2:16-cv-01442, in the U.S. District Court for the Central District of California.
As craft beverage producers explore more flavor profiles, this issue will have greater importance. Describing the flavor, as well as associated label images, must be accurate to be in compliance with food labeling and other laws. Thus, a maple lager must actually have maple syrup or it should be called a maple flavored lager. Images relating to maple should not imply that actual maple products were used as ingredients if there were artificial flavorings responsible for the maple-like taste notes.
Other cases have consumers and regulators complaining that the label depicted a fruit that was not actually used in the production of the food and beverage product.
Another action was brought against Subway for its 6 inch sub that actually measured just over 5 inches in some cases. (I imagine somewhere someone is weighing the ½ ib. burger to see if it is actually 8 oz. or 7.5 oz., or measuring the 16 inch pizza to see if the diameter is actually only 15 inches.) The take-away is that if you advertise a fact, be ready to prove its truth if you want to stay out of the headlines. You may want to rename your 16 inch pizza a medium and your ½ pound burger the extra-large burger (or something similar) if you want to avoid claims of deceptive advertising.
This regulatory requirement extends to all products so should be universally applied to all craft beverages and food sold at their on-premise establishments. If you have any questions about your label design or menu advertising, consult with your legal advisor to identify and understand any potential pitfalls and compliance issues.
Tracy Jong has been an attorney for more than 20 years, representing restaurants, bars, and craft beverage manufacturers in a wide array of legal matters. She is also a licensed patent attorney.
Her book Everything You Need To Know About Obtaining and Maintaining a New York Retail Liquor License: The Definitive Guide to Navigating the State Liquor Authority will be available next month on Amazon.com as a softcover and Kindle e-book.
Her legal column is available in The Equipped Brewer, a publication giving business advice, trends, and vendor reviews to help craft breweries, cideries, distilleries and wineries build brands and succeed financially.
She also maintains a website and blog with practical information on legal and business issues affecting the industry. Follow her, sign up for her free firm app or monthly newsletter.
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