The 9th Circuit has upheld the District Court decision dismissing the false advertising case against Anheuser for Bud-Light Lime Lime-a-Rita. For those not familiar with this false advertising lawsuit, consumers brought claims against Anheuser alleging that the use of the work “Light” in the Bud Light Lime Lime-a-Rita name was misleading because the alcoholic beverages actually contained more calories and carbohydrates per ounce that other Budweiser products. The District Court granted the brewer’s motion to dismiss and the plaintiffs appealed.
In a brief, and unpublished opinion (you can read it here) the 9th Circuit (by a 2 to 1 decision) upheld the dismissal, finding that no reasonable consumer would be deceived by the label on the carton which calls the drink a “Margarita With a Twist” that it was low-calorie or low-carbohydrate. Now, while you may be wondering how they made this determination without any consumer polling information, surveys, or any citation to authority, just put on their thinking caps and “knew” was a “reasonable consumer” would think, you will be pleased to note that they did posit a straw-man hypothetical “Budweiser Lime Lime-a-Rita” and found that a reasonable consumer might compare the actual Bud Light drink to that fictional beverage and because the fictional beverage has more calories, wouldn’t be mislead. (What?)
Here’s that portion of the decision:
We hold that no reasonable consumer would be deceived by the label on the carton into thinking that “Bud Light Lime Lime-a-Rita,” which the label calls a “Margarita With a Twist,” is a low-calorie, low-carbohydrate beverage or that it contains fewer calories or carbohydrates than a regular beer. It is clear from the label that the beverage is not a normal beer. In addition to describing the product prominently as a “Margarita With a Twist,” the Lime-a-Rita label pictures a bright green drink, served over ice, in a margarita glass.
A reasonable consumer, seeing that label, might compare “Bud Light Lime Lime-a-Rita” to one of two other products: (a) a hypothetical product “Budweiser Lime-a-Rita,” made with Budweiser instead of with Bud Light, or (b) a tequila margarita. The hypothetical product would contain more calories and carbohydrates than does the beverage at issue, because the hypothetical beer component (Budweiser) has more calories and carbohydrates than the actual ingredient (Bud Light). And a tequila margarita typically contains at least as many calories and carbohydrates as a “Bud Light Lime Lime-a-Rita.” The same reasoning applies to the cartons containing the other “Rita” products. Accordingly, Plaintiffs’ claims for misrepresentation and omission fail.
So, there you have it, if a hypothetical un-light or non-light version of the drink did exist, then it would be higher in calories so a consumer would not mislead into believing that the version called “Light” was low-calorie.
A tautology if ever there was one.
Thankfully, hypothetical drinks exist in both a “higher calorie” and a “lower calorie” realm. So in the end, you do get a rebuttal on this issue. Not missing a beat on this twisted logic, a dissenting judge rightfully pointed out that one of the drinks compared in the opinion was false and wondered whether a more apt comparison might not be to actual Bud Light Lime… in which case, the Bud Light Lime Lime-a-Rita is comparatively not low-calorie.
From the Dissent:
In fact, in my view that result is likely because the most natural comparison is between Bud Light Lime Lime-a-Rita and Bud Light Lime. If those two products are compared, Bud Light Lime has far fewer calories and carbohydrates. I do not agree that reasonable consumers would compare Bud Light Lime Lime-a-Rita with “Budweiser Lime-a-Rita” or with a margarita; the former does not exist and the latter is made with tequila—and is decidedly not a malt beverage.
In the end, the only reliable insight here is that given the brevity and off-handed nature of the opinion and the dissent, the court likely didn’t want to deal with this appeal.