Bud Light Lime-A-Rita Not So ‘Light,’ 9th Circ. Told

When you see the image above, what comes to mind?

Bud Light Lime-A-Rita Not So ‘Light,’ 9th Circ. Told

Source: Law360

By Daniel Siegal

February 7, 2017

Drinkers of Bud Light Lime-A-Rita on Tuesday urged the Ninth Circuit to revive their putative class action accusing Anheuser-Busch LLC of tricking consumers into thinking the sugar-loaded beverage is low-calorie, arguing that the brewer’s use of the term “light” on labeling has meaning for consumers.

During oral arguments in Pasadena, California, Behdad Sadeghi of Zimmerman Reed LLP, representing named plaintiffs Sheila Cruz, Deborah Esparza and Catherine Silas, urged a three-judge panel to reverse U.S. District Judge Andre Birotte Jr.’s ruling dismissing the suit, which contends that Anheuser-Busch’s labeling of the cocktail-flavored malt beverage tricks consumers into thinking that Lime-A-Rita is comparable to Bud Light Lime, when in fact it contains nearly three times as many calories.

The panel appeared to be amused by the case’s subject matter, with Circuit Judge Morgan Christen saying before arguments began that the case was the “law clerks’ favorite,” and Circuit Judge Susan Graber adding there was “a lot of show-and-tell in chambers in this morning.”

Sadeghi then showed the judges a flattened Lime-A-Rita box, and argued that the use of the term “light” on the label could plausibly be misleading to consumers, and that the trial court erred in dismissing the case at the pleadings stage on the basis that “no reasonable consumer” could be misled by the label because there is no full-calorie Lime-A-Rita to be compared against the Bud Light version.

Judge Graber, however, asked why the comparison shouldn’t be between a Lime-A-Rita and a full-strength margarita made with liquor, which would have twice as many calories as the Lime-A-Rita – and thus make the “light” descriptor accurate.

“What’s on the box, the carton is a picture of what looks like a margarita, and it’s all about ‘give your margarita a twist,’ and ‘this is the margarita with a twist,'” she said. “Why isn’t the comparator product an ordinary margarita, as to which, this has fewer calories?” she asked.

Sadeghi responded that although the comparison to an ordinary margarita is plausible, the use of the Bud Light logo on the box means it is equally plausible that consumers would draw the comparison to an ordinary Bud Light, or a Bud Light Lime – both of which have many fewer calories than the Lime-A-Rita.

“The reason they use the same Bud Light moniker is it has meaning to people,” he said. “That meaning … is that it was a product that is light in some way.”

The proposed class action was filed by Cruz in November 2014 in California state court. Cruz alleged that Lima-A-Ritas are “the highest calorie alcoholic beverage sold by [Anheuser-Busch].” Lime-A-Ritas have 192 to 220 calories in eight ounces, according to Cruz, whereas a full Budweiser has only 145 calories and a normal Bud Light 110 calories in 12 ounces, she said in the complaint.

The U.S. Food and Drug Administration generally limits the use of “light” to products that have, at most, two-thirds the calories of the comparable reference product, Cruz said.

Anheuser-Busch introduced Lime-A-Ritas in 2012, and the line now also includes Raz-Ber-Rita, Straw-Ber-Rita, Mang-O-Rita and Apple-Ahhh-Rita, Cruz says, selling $462 million worth of product nationally in 2012. According to the appellate briefs, those varieties have now been joined by Cran-Brrrr-Rita.

The suit was removed to federal court in December 2014 and dismissed in June 2015 for failure to state a claim, and the plaintiffs appealed to the Ninth Circuit in July 2015.

On Tuesday, Peter Morrison of Skadden Arps Slate Meagher & Flom LLP, representing Anheuser-Busch, urged the appellate panel to uphold Judge Birotte’s ruling, arguing first that the Alcohol and Tobacco Tax and Trade Bureau, which regulates alcohol packages, had “expressly” said that the “light” was OK, and thus the brewer has safe harbor from the suit.

Morrison added that a reasonable consumer would never think that a Bud Light Lime-A-Rita has fewer calories than a “regular old Budweiser.”

“It’s a false comparison. The reason is no reasonable consumer would believe that this product would be comparable to a beer,” he said.

Morrison said that the appropriate comparison would be a Lime-A-Rita made with full-calorie Budweiser – which does not exist, but would in fact have more calories than the Bud Light Lime-A-Rita.

The panel took the matter under submission.

Circuit Judges Susan Graber, Jay Bybee and Morgan Christen sat on the panel for the Ninth Circuit.

Cruz is represented by Christopher Ridout, Caleb Marker and Behdad G. Sadeghi of Zimmerman Reed LLP, and Kevin Mahoney of Mahoney Law Group APC.

Anheuser-Busch is represented by Peter Morrison of Skadden Arps Slate Meagher & Flom LLP.

The case is Sheila Cruz et al. v. Anheuser-Busch LLC, case number 15-56021, in the U.S. Court of Appeals for the Ninth Circuit.