Don’t Go Chasing Waterfalls: Olympia Beer Is Allegedly Using Tap Water, Says False Advertising Suit

On October 1, in the Eastern District of California, the Honorable Troy L. Nunley allowed a false advertising claim against a beer company to go to trial, determining that allegations of falsifying the water source used in one’s beer-making created actionable grounds upon which to pursue damages and injunctive relief under the California False Advertising Law.

Brendan Peacock, the plaintiff, sued Pabst Brewing Company (PBR) claiming that he purchased Olympia Beer from PBR due to the beer’s labeling, which purportedly misled consumers as to the water source used to create the beer. For example, the can contains a picture of the Olympia waterfall in Washington State and the words “It’s the Water” and “The Original Olympia Beer,” thus, asserted Peacock, it implied that Olympia Beer was made with water from the Olympia area, when in fact the beer is made using California tap water. 

PBR filed a motion to dismiss the plaintiff’s false advertising claim, not disputing the alleged origins of the water used in their beer, but claiming that the labeling at issue was mere puffery, for which a legal claim for false advertising could not stand. The defendant argued that the can’s labeling merely invoked the “spirit of the waterfall,” while lacking in geographical specificity. The judge disagreed, holding that while the can labeling “does not contain a map pinpointing the alleged misrepresentation or an explicit statement regarding origin…it is plausible that a reasonable consumer could see the phrase ‘The Original Olympia Beer’ and the waterfall image on the can and associate Olympia Beer with the Olympia area of Washington, especially in light of (the plaintiff’s) allegation that the waterfall image ‘looks just like the waterfalls’ associated with the…Olympia area of Washington State.”

The judge concluded by finding that given the plaintiff’s allegations above that the “(p)laintiff plausibly alleges that a reasonable consumer would likely be deceived by the Olympia Beer labeling into believing Olympia Beer is brewed with water from the Olympia area of Washington State” and theretofore, the defendant’s motion to dismiss must be denied. 

The plaintiff sought an injunction forcing the defendant to edit the beer labeling to remedy the alleged false advertising and damages equal to the court determined amount between what the plaintiff paid for the beer at retail and what the plaintiff would have paid at retail had he known the true origin of the water used to create Olympia Beer. 

The plaintiffs are represented by Cullin O’Brien Law and Beck & Lee. Pabst is represented by Buchalter.