Jessica M. Karmasek Feb. 26, 2015, 12:15pm



LOS ANGELES (Legal Newsline) - The plaintiffs in a proposed class action filed against a popular beer maker argue that their lawsuit, filed against the company for its allegedly deceptive product labeling, should not be dismissed.




Plaintiff Sheila Cruz and the proposed class filed an opposition to Anheuser-Busch’s motion to dismiss earlier this month.




 








In December, Cruz filed the lawsuit against Anheuser-Busch, which makes Bud Light products. She alleges the company’s Bud Light Lime-A-Rita products claim to be low in calories, but actually contain more calories than any other product sold by Anheuser-Busch.




 




The lawsuit, which alleges that Anheuser-Busch deceptively concealed, omitted and misrepresented the calories in the products, seeks class status for anyone who purchased any flavor of Bud Light Lime-A-Rita since it was first introduced in 2008.




 




“Much like the ‘Rita Products at issue, A-B’s motion to dismiss is founded on a material omission,” lawyers for the plaintiffs wrote.




 




In their Feb. 13 filing, the plaintiffs argue that a Florida federal court recently rejected “nearly all” of the company’s arguments for dismissal.




 




The plaintiffs contend in their 25-page motion, filed in the U.S. District Court for the Central District of California, that the company fails to acknowledge another federal court ruling, Marty v. Anheuser-Busch Companies LLC.




 




The ruling, issued by the U.S. District Court for the Southern District of Florida in September, left standing most of a putative class action lawsuit against the beer maker.




 




“Failing to even acknowledge the Marty opinion, A-B also fails to mention that the court there -- applying California law -- rejected its motion to dismiss and expressly held that, under California law, the safe harbor protections of [the state’s] Unfair Competition Law and Consumers Legal Remedies Act do not preclude the plaintiffs’ claims,” the plaintiffs’ lawyers wrote.




 




“Marty also provides a useful analysis of related issues such as A-B’s deceptive advertising and labeling practices.”




 




In its motion to dismiss, filed Jan. 23, Anheuser-Busch argues that every label at issue “accurately discloses” the average number of calories and carbohydrates that the products contain, as required by the federal agency responsible for alcohol beverage labeling, the U.S. Treasury’s Alcohol and Tobacco Tax and Trade Bureau, or TTB.




 




An eight-ounce can of Lime-A-Rita contains about 220 calories and 21.9 grams of carbohydrates, according to the plaintiffs’ lawsuit. In comparison, a 12-ounce can of Budweiser contains about 145 calories and 10.6 grams of carbohydrates; a can of Bud light has about 110 calories and 6.6 grams of carbohydrates; and a can of Bud Light Lime has about 116 calories and 8 grams of carbohydrates.




 




Anheuser-Busch advertises five different Lime-A-Rita flavors each varying between 192 and 220 calories, and 22.8 and 23.6 carbohydrates per eight-ounce can, according to the complaint.




 




“Plaintiffs do not contend that these disclosures are inaccurate,” lawyers for Anheuser-Busch wrote in their motion. “In fact, Plaintiffs fail to even inform the Court that the accurate number of calories and carbohydrates in the products is disclosed on the products’ labels.




 




“Plaintiffs ignore these disclosures and simply allege that they believed the products would have fewer calories and carbohydrates (fewer than what, they never say) solely because the brand name on the labels includes the statement ‘Bud Light Lime.’”




 




The company argues in its 25-page motion that the complaint should be dismissed because the challenged labels were approved by the TTB prior to use.




 




“The TTB has determined that the use of the term ‘light’ on a malt beverage label is not misleading or deceptive as long as the label contains a statement of average analysis disclosing the actual number of calories, carbohydrates, protein and fat the product contains,” Anheuser-Busch wrote. “The labels at issue here complied with this TTB requirement, and thus were approved by the TTB prior to being used in the United States.




 




“Pursuant to California’s safe harbor doctrine, Plaintiffs cannot premise their consumer protection or warranty claims on the use of the statement ‘Bud Light Lime’ because the TTB  specifically permits the challenged labels to include that statement.”




 




The company’s lawyers also argue that the plaintiffs’ claims -- including one for breach of express warranty -- fail because they have not identified an “actionable misrepresentation.”




 




“Plaintiffs allege only that they subjectively interpreted the words ‘Bud Light Lime’ to mean that the products ‘were low in calories and carbohydrates,’ and that Plaintiffs do not personally consider the actual amount of calories and carbohydrates -- as disclosed on the labels -- to satisfy their subjective definition of ‘low,’” they wrote.




 




The lawsuit was originally filed in a Los Angeles state court, but Anheuser-Busch had the case removed to the federal court under the Class Action Fairness Act.




 




The plaintiffs are represented by Christopher P. Ridout and Caleb Marker of Ridout Lyon + Ottoson LLP and Kevin Mahoney, Sam Kim and Nick Poper of Mahoney Law Group APC. Both law firms are based in Long Beach, Calif.




 




Anheuser-Busch is represented by New York City firm Skadden Arps Slate Meagher & Flom LLP.




 




From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.


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