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Ninth Circuit:
Maker of Olympia Beer Did Not Hoodwink Consumers
Panel Upholds Determination That Use of ‘It’s the Water’ Slogan Was Proper After Brewing Left Tumwater Site
By a MetNews Staff Writer
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A complaint in a putative class action alleges that the then-maker of Olympia Beer defrauded consumers by continuing to use the logo pictured above—depicting a waterfall in Tumwater, Wash. and using the slogan, “It’s the Water”—after operations in the Northwest were abandoned in 2003 and the product came to be brewed in Los Angeles County and elsewhere. The Ninth U.S. Circuit Court of Appeals on Thursday affirmed a summary judgment in favor of the defendant, upholding a District Court determination that no fooling of beer-drinkers was shown. |
The Ninth U.S. Circuit Court of Appeals has held that makers of Olympia Beer—long touted as a superior product, with the explanation that, “It’s the Water,” and with the depiction on labels and in ads of a waterfall in Tumwater, Wash.—did not defraud consumers by continuing to use that slogan and graphic after moving production out of the Northwest in 2003.
With primary operations having moved to Irwindale, a city in the San Gabriel Valley, it appears from the operative pleading, though not expressly alleged, that that the lager was being brewed, at that location, utilizing Los Angeles-area tap water. While beer-making took place at additional places, it was set forth that “Defendant does not brew ‘The Original Olympia Beer,’ ” as it was being called, “using water from the Olympia area of Washington State.”
The Ninth Circuit decision came on Thursday in a memorandum opinion signed by Circuit Judges Consuelo M. Callahan, Roopali H. Desai, and Ana de Alba. Affirmed is a summary judgment in favor of the Pabst Brewing Company, a Delaware limited liability company headquartered in Los Angeles, which became owner of Olympia brand in 1999.
A putative class action was brought in 2018 by Sacramento resident Brendan Peacock, termed “a beer, and craft beer, consumer.” His Sept. 19, 2019 second amended complaint, relying upon California’s Unfair Competition Law (“UCL”), located at Business & Professions Code §17200 et. seq, recounts that the brewing of Olympia beer, using artesian spring water, began in Tumwater in 1896 and that the slogan, “It’s the water,” came into use in 1902.
“Drinking Olympia has been Plaintiff’s family tradition for many years and the story of the uniqueness and value of the artesian water has been passed down through oral tradition,” the pleading sets forth. “The words ‘the original’ on the can, combined with the image of waterfalls from the Olympia area of Washington State, and ‘it’s the water,’ collectively solidified Plaintiffs perception that ‘The Original Olympia Beer’ was still brewed using water from the Olympia area of Washington State.”
The complaint avers:
“The certain beer product Defendant markets as ‘The Original Olympia Beer’ after 2003 is contract-brewed at several mega-breweries throughout the country, including but not limited to the one located in Los Angeles County, at 15801 W. 1st Street, Irwindale, California. The current brewing process uses a different quality of water than the water from the Olympia area of Washington State. The current brewing process lacks the water from the Olympia area of Washington State’s rich and pure minerals added though its natural filtered process. Instead, the current brewing process uses water that may include chlorine and other artificially added chemicals.”
Pabst Ceases Production
Litigation continued even after Pabst announced on Jan. 25, 2021, that it was “temporarily pausing production” of Olympia Beer. (That brand is now manufactured by a Canadian company.)
The cessation of production by Pabst prompted then-District Court Judge (now Chief Judge) Troy L. Nunley of the Eastern District of California to deny class certification and rule out injunctive relief. On March 18, 2024, Judge Daniel J. Calabretta, relying on consumer surveys conducted for Pabst, disposed of remaining issues, ruling:
“Defendant is entitled to summary judgment as Plaintiff has failed to present any evidence from which this Court can find that a reasonable consumer is likely to be deceived by Defendant’s marketing of Olympia Beer.”
Ninth Circuit’s Affirmance
In agreement with Calabretta, the Ninth Circuit said on Thursday:
“California’s reasonable consumer standard governs Peacock’s UCL claim….A mere possibility of confusion among ‘some few consumers’ with an unreasonable understanding and ‘a few isolated examples of actual deception’ are insufficient to maintain a UCL claim for false advertising….The plaintiffs own personal experience and assumptions are also insufficient on their own to meet the reasonable consumer standard.”
The judges continued:
“In this case, the district court properly granted summary judgment. Pabst carried its burden with unrebutted expert opinion that ‘there is no meaningful evidence’ that the relevant consumer population was ‘misled by the elements of the Olympia Beer label’ at the heart of this case. Peacock offers virtually no evidence or specific facts that support his claim. He cites only his personal assumptions and limited deposition testimony that is not relevant to whether the Olympia Beer label was likely to confuse ‘an appreciable number’ of reasonable consumers….In short, Peacock lacks the fundamental evidentiary ingredients to brew a successful escape from summary judgment.”
The case is Peacock v. Pabst Brewing Company, 24-2494.
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