Originally published by Nick Farr.
According to a report from the Chicago Tribune, a new class action lawsuit has been filed in Ohio against Wal-Mart, accusing the retail giant of shady beer sales. Specifically, the suit takes issue with Wal-Mart’s sale of its own line of “craft” beer in collaboration with Trouble Brewing. The problem, according to the complaint, is that Trouble Brewing does not really exist. In reality, the Wal-Mart brew is brewed on a contract basis by Genessee Brewing, which is owned by North American Breweries and produces more beer than would warrant the “craft” moniker. Plaintiffs allege that Wal-Mart has created a “wholesale fiction,” placing its beer on the shelves around other legitimate craft beers, to deceive consumers into purchasing craft beer at a higher, inflated price.
So what really is a “craft” beer? The Brewers Association defines a craft brewer as “small, independent, and traditional.” To qualify, a craft brewery must produce less than 6 million barrels of beer annually, be less than 25 percent owned or controlled by a non-craft brewery, and make beer using only traditional or innovative brewing ingredients. While Genessee isn’t Anheuser Busch InBev or MillerCoors, the “Trouble Brewing” brand, assuming the allegations in the complaint are true, certainly doesn’t sound like a “small, independent, and traditional” beer – especially when considering the fact that it is backed by one of the world’s largest companies in Wal-Mart. And, we are guessing Genessee doesn’t offer Trouble Brewing tours and flights of the entire Trouble Brewing line over a game of cornhole.
It should be noted that the Trouble Brewing beers do not specifically identify themselves as “craft” on their packaging. However, as a senior buyer for Wal-Mart told the Chicago Tribune in an interview, “We were intentional about designing a package that conveyed a look and feel you’d expect of craft beer.” If only catchy packaging were all it took to make a craft beer.
As avid beer drinkers, we are certainly sensitive to craft beer deception. As such, we can empathize with the plaintiffs on this ground. As defense lawyers, though, we must assert assumption of risk as an affirmative defense. Something about Wal-Mart and the purchase of craft beer just doesn’t sound right in the first place. With so many craft breweries, growler stations, and local bottle shoppes popping up on every street corner, it has never been easier to pick up a craft brew. Wal-Mart certainly isn’t the place we would think of when it comes to trying out a new beer.
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