United States: Pabst Sub-Brew Accused Of Using City Water

Olympia Beer's "It's the Water" tag attacked by class action suit

H2Oh!

Water is important. We all know that. It's essential to our health and fundamental to the existence of life. But above and beyond all, it's the crucial ingredient in beer.

Consider the case of Brandon Peacock, a California citizen, and the lengths he went to preserve the aquatic integrity of storied beer brand Olympia beer.

Antediluvian

The story begins in 1850 (yes, 1850), when brewer Leopold Schmidt purchased property in Washington state and set up shop. Eventually, his brewing company began using nearby waterfalls to produce a product called Olympia Pale Export, which became quite popular. Around the turn of the century, the company added "It's the Water" to the can, pitching the waterfalls near Schmidt's original stead as the reason for the beer's winning taste.

In 1999, after a century of "mergers, acquisitions, and consolidations," according to a class action suit lodged by Peacock, the Olympia Brewing Company – the predecessor of Schmidt's original brewery – was purchased by Pabst Brewing Company. Peacock alleges that sometime after the old Olympia Brewery closed in 2003, Pabst began brewing Olympia Beer in a mega-brewery located in Irwindale, California.

The Takeaway

Despite the move, Peacock alleges in a March 2018 complaint in the Eastern District of California that Pabst continues to sell Olympia Beer with the "It's the Water" tagline, retained a picture of the original brewery and waterfalls on the packaging, and promoted the beer's unique origin on its website. All this despite the fact that Irwindale's water is allegedly vastly inferior to the original artesian springs. Peacock seeks damages for violations of the Consumer Legal Remedies Act; the California Sherman Food, Drug, and Cosmetic Law; and the California Unfair Competition Law.

Source, ingredient and other product claims may arise out of images, tag lines and packaging. The question is what would be the net impression of a reasonable consumer. If material consumer confusion as to the actual facts results, the marketing could be deceptive advertising. However, this case can be distinguished from cases where packaging images and tag lines were ultimately found to create an implicit false product claim. Brands will surely be watching the progress of this case, as will we.

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