Parent v. MillerCoors LLC et al

Filing 15

Notice of Tentative Ruling on 6 Defendant MillerCoors's Motion to Dismiss. Signed by Judge Gonzalo P. Curiel on 10/21/2015. (srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EVAN PARENT, an individual on
behalf of himself, a class of persons
similarly situated, and the general
public,
v.

Plaintiff,

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NOTICE OF TENTATIVE RULING
ON DEFENDANT MILLERCOORS’
MOTION TO DISMISS
[ECF No. 6]

MILLERCOORS LLC, a Delaware
Limited Liability Company authorized
to do business in California, and
DOES 1-50, inclusive,

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CASE NO. 3:15-cv-1204-GPC-WVG

Defendant.

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Before the Court is Defendant MillerCoors LLC (“Defendant” or
“MillerCoors”)’s Motion to Dismiss. Def. Mot. Dismiss (“Def. Mot.”), ECF No. 6. The
motion has been fully briefed. Pl. Resp., ECF No. 7; Def. Reply, ECF No. 12. Upon
consideration of the moving papers and the applicable law, the Court issues the
following tentative rulings in advance of the hearing scheduled for October 23, 2015.
FACTUAL BACKGROUND
The facts of this case concern “Blue Moon,” a popular brand of Belgian-style
wheat beer owned by Defendant MillerCoors. MillerCoors is a major beer manufacturer
with many well-known beer brands, including Coors Light, Miller Genuine Draft,

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1 Miller High Life, Milwaukee’s Best, Hamm’s, Icehouse, Olde English, and Keystone.
2 Compl. 14, ECF No. 1.1 Plaintiff Evan Parent (“Plaintiff”), a “beer aficionado and
3 home brewer,” alleges that from 2011 until mid-2012, he regularly paid a price
4 premium purchasing Blue Moon beer from San Diego-area retailers for personal and
5 family consumption because MillerCoors created the deceptive and misleading
6 impression that Blue Moon is a “craft beer.” Id. at 15.
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According to Plaintiff, Blue Moon does not qualify as a “craft beer” because

8 such beers are produced by “small, independent and traditional” craft breweries as
9 defined by the Brewers Association, a trade organization for American craft brewers,
10 and MillerCoors is not such a brewery. Id. at 15. More specifically, according to the
11 Brewers Association, “[t]o qualify as an American craft brewer, a brewery must: (a)
12 Produce less than 6 million barrels of beer annually; (b) Be less than 25 percent owned
13 or controlled by a non-craft brewer; and (c) Make beer using only traditional or
14 innovative brewing ingredients.”Id. Plaintiff alleges that MillerCoors produces more
15 than 76 million barrels of beer on an annual basis. Id.
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Plaintiff alleges that even though Blue Moon is not really a craft beer,

17 MillerCoors engages in deceptive and misleading business practices to misrepresent
18 it as a craft beer in order to capture a slice of the burgeoning craft beer market and
19 “charge up to 50% more for Blue Moon beer than it charges for other MillerCoors
20 products.”2 Id. at 15–16.
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First, Plaintiff alleges that “Defendant goes to great lengths to disassociate Blue

22 Moon beer from the MillerCoors name.” Id. at 15. Even though Blue Moon is owned
23 by MillerCoors, MillerCoors’ ownership of Blue Moon is not disclosed on the bottle
24 or the outer packaging of Blue Moon beers, which instead states that the product is
25 manufactured by “Blue Moon Brewing Co.” Id. In fact, Blue Moon is brewed by
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All page numbers cited refer to the pagination created by the CM/ECF system, not parties’

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“On average, a six pack of craft beer typically costs $2.00 to $3.00 more than a six pack of
macrobrewed, or mass produced beer.” Compl. 14.
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1 MillerCoors at its Golden, Colorado, and Eden, North Carolina breweries, which also
2 produce all of MillerCoors’ other beers. Compl. 15. The Blue Moon Brewing Company
3 (“BMBC”) website also contains no reference to MillerCoors’ ownership of the brand,
4 although MillerCoors’ own website lists Blue Moon among its “craft beer” brands. Id.
5 Second, Plaintiff argues that Defendant’s use of the registered trademark “Artfully
6 Crafted” in the labeling and advertising for Blue Moon beer misleads consumers into
7 thinking Blue Moon is a craft beer. Compl. 16. Third, Plaintiff argues that Blue Moon’s
8 “premium price,” in line with other craft beers, as well as its “placement among other
9 craft beers” in San Diego-area retailers, misled him into believing Blue Moon was a
10 craft beer. Id.
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PROCEDURAL BACKGROUND
On April 24, 2015, Plaintiff, a resident of California, brought suit on behalf of

13 himself and others similarly situated against Defendant, a limited liability company
14 incorporated in Delaware and with its principal place of business in Illinois, in San
15 Diego Superior Court. Id. at 12. Plaintiff pled three causes of action for (1) deceptive
16 practices and misrepresentation in violation of California’s Consumers Legal Remedies
17 Act (“CLRA”), Cal. Civ. Code § 1750 et seq.; (2) untrue and misleading advertising
18 in violation of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. Code
19 § 17500 et seq.; and (3) unlawful, fraudulent and unfair business practices in violation
20 of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et
21 seq.
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On May 30, 2015, Defendant removed the case to federal court pursuant to the

23 Class Action Fairness Act, 28 U.S.C. § 1332(d). Compl. 3. This motion followed.
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LEGAL STANDARD
A Rule 12(b)(6) dismissal may be based on either a “‘lack of a cognizable legal

26 theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’”
27 Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008)
28 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
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DISCUSSION

2 I.

Judicial Notice

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“Although generally the scope of review on a motion to dismiss for failure to

4 state a claim is limited to the Complaint, a court may consider evidence on which the
5 complaint necessarily relies if: (1) the complaint refers to the document; (2) the
6 document is central to the plaintiff[’s] claim; and (3) no party questions the authenticity
7 of the copy attached to the 12(b)(6) motion.” Daniels–Hall v. Nat'l Educ. Ass'n, 629
8 F.3d 992, 998 (9th Cir. 2010) (internal quotation marks and citations omitted). Fed.
9 R. Evid. 201(b) permits judicial notice of a fact when it is “not subject to reasonable
10 dispute because it: (1) is generally known within the trial court's territorial jurisdiction;
11 or (2) can be accurately and readily determined from sources whose accuracy cannot
12 reasonably be questioned.” The court may take notice of such facts on its own, and
13 “must take judicial notice if a party requests it and the court is supplied with the
14 necessary information.” Fed. R. Evid. 201(c). The records and reports of administrative
15 bodies are proper subjects of judicial notice, as long as their authenticity or accuracy
16 is not disputed. See Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th
17 Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino,
18 501 U.S. 104 (1991).
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MillerCoors seeks judicial notice of the outer packaging, flat, and label of Blue

20 Moon beer; federal trademark registrations for “Blue Moon,” “Artfully Crafted,” and
21 “Blue Moon Brewing Company”; and MillerCoors’ Fictitious Business Name
22 Statement for “Blue Moon Brewing Company.” Def. Mot., Exs. D, H; Def. Req. for
23 Judicial Notice, Exs. A–D, ECF No. 6-4. Plaintiff seeks judicial notice of MillerCoors’
24 federal trademark registrations for “Plank Road Brewery,” “Third Shift Band of
25 Brewers,” and “Tenth and Blake Beer Company.” Pl. Req. for Judicial Notice, Exs.
26 1–3, ECF No. 8.
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Neither party questions the authenticity of these documents. The Court finds that

28 these items are appropriate for judicial notice because they are matters of public record,
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1 the parties do not dispute their authenticity, and they are central to Plaintiff’s claims.
2 See, e.g., Welk v. Beam Suntory Imp. Co., No. 15-cv-328-LAB-JMA, 2015 WL
3 5022527, at *1–2 (S.D. Cal. Aug. 21, 2015) (taking judicial notice of label in case
4 concerning use of the word “handcrafted” on Jim Beam bourbon labels); Hofmann v.
5 Fifth Generation, Inc., No. 14-cv-2569-JM-LB, 2015 WL5440330 (S.D. Cal. Mar. 18,
6 2015) (taking judicial notice of labels in case concerning the use of the words
7 “[h]andmade” and “[c]rafted in an [o]ld [f]ashioned [p]ot [s]till” on Tito’s Handmade
8 Vodka’s labels). Therefore, the Court GRANTS parties’ requests for judicial notice.3
9 II.
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Motion to Dismiss
Defendant argues that the case should be dismissed because (1) MillerCoors’ use

11 of the BMBC trade name falls within California’s “safe harbor” from liability under its
12 consumer protection laws; (2) MillerCoors’ trade name and trademark registrations put
13 Plaintiff on notice of its ownership and use of the BMBC trade name; (3) no reasonable
14 consumer could have been misled by MillerCoors’ use of “craft beer” and “Artfully
15 Crafted,” because there is no standard definition of “craft beer”; (4) Plaintiff failed to
16 plead his claims with the requisite specificity; and (5) Plaintiff lacks standing to pursue
17 injunctive relief because he has no intent to purchase Blue Moon beer in the future.
18 Def. Mot. 9–10.
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Plaintiff responds that (1) the safe harbor doctrine does not apply; (2) a

20 reasonable consumer would not be put on notice by MillerCoors’ trademark or listing
21 in the fictitious business name registry; (3) the term “craft beer” is well defined, and
22 a reasonable consumer would be deceived by MillerCoors’ representation of Blue
23 Moon as a craft beer; (4) Plaintiff adequately pled his claims; and (5) Plaintiff has
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Defendant also requests judicial notice of Pye v. Fifth Generation, Inc., 2015
WL 5634600 (N.D. Fla. Sept. 23, 2015). Def.’s Second Request for Judicial Notice
26 and Notice of Supplemental Authority, ECF No. 14. On a motion to dismiss, a court
may take judicial notice of “the existence of [another court’s] opinion, which is not
27 subject to reasonable dispute over its authenticity.” Lee v. City of Los Angeles, 250
F.3d 668 (9th Cir. 2001) (citation omitted). However, for the reasons discussed below
28 in Part II.A, the Court declines to adopt Pye’s reasoning as to the applicability of the
TTB’s COLA for Blue Moon to California’s safe harbor exception.
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1 standing to pursue injunctive relief . Pl. Resp. 9–28. Plaintiff also seeks leave to amend
2 in the event that the Court grants the motion to dismiss. Pl. Resp. 29.
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Because the Court finds that the safe harbor doctrine does apply, and the

4 reasonable consumer would not likely be deceived by MillerCoors’ other alleged
5 representations, the Court GRANTS Defendant’s motion to dismiss. However, the
6 Court also GRANTS Plaintiff leave to amend his complaint to cure the deficiencies
7 identified below.
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A.

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MillerCoors argues that Plaintiff’s UCL, CLRA, and FAL claims are barred by

Safe Harbor Doctrine

10 the safe-harbor exception to California’s consumer protection laws. Def. Mot. 11. In
11 Cel-Tech Communications v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163
12 (1999), the California Supreme Court recognized a safe harbor under the UCL for
13 actions that the law actually bars, or for conduct the law “clearly permit[s].” Id. at 183.
14 The Court explained:
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Although the unfair competition law’s scope is sweeping, it is not
unlimited. Courts may not simply impose their own notions of the
day as to what is fair or unfair. Specific legislation may limit the
judiciary’s power to declare conduct unfair. If the Legislature has
permitted certain conduct or considered a situation and concluded
no action should lie, courts may not override that determination.
Id. at 182. The doctrine applies whether state or federal law has authorized the conduct
at issue. See Van Koenig v. Snapple Beverage Corp., 713 F. Supp. 2d 1066, 1074 (E.D.
Cal. 2010).
Courts have since extended the safe harbor doctrine to CLRA and FAL claims.
See, e.g., Alvarez v. Chevron Corp., 656 F.3d 925, 933–34 (9th Cir. 2011) (applying
safe harbor to a CLRA claim); Ebner v. Fresh Inc., 2013 WL 9760035, at *4–6 (C.D.
Cal. Sept. 11, 2013) (applying safe harbor to UCL, CLRA, and FAL claims); POM
Wonderful LLC v. Coca Cola Co., 2013 WL 543361, at *1 (C.D. Cal. Feb.13, 2013)
(applying safe harbor to UCL and FAL claims). Regulations, as well as statutes, can
create safe harbors. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1169 & n.8
(9th Cir. 2012).
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At issue in this case is whether existing regulation has specifically authorized

2 MillerCoors’ practice of listing the manufacturer of Blue Moon as “Blue Moon
3 Brewing Co.,” instead of as MillerCoors, on the label and packaging for Blue Moon
4 beer, or merely failed to bar it. As Cel-Tech put it,
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[A] plaintiff may not bring an action under the unfair competition law if
some other provision bars it. That other provision must actually bar it,
however, and not merely fail to allow it. In other words, courts may not
use the unfair competition law to condemn actions the Legislature
permits. Conversely, the Legislature’s mere failure to prohibit an activity
does not prevent a court from finding it unfair. Plaintiffs may not “plead
around” a “safe harbor,” but the safety must be more than the absence of
danger.
20 Cal. 4th at 184.
MillerCoors points to two regulatory regimes that they claim authorize their
labeling practices. First, the Federal Alcohol Administration Act regulates the
distribution of alcoholic beverages, including beer. 27 U.S.C. § 205. Under § 205(e),
the Secretary of the Treasury is charged with promulgating regulations that will “will
prohibit, irrespective of falsity, such statements relating to age, manufacturing
processes, analyses, guarantees, and scientific or irrelevant matters as the Secretary of
the Treasury finds to be likely to mislead the consumer.” Id. The Secretary’s duties
have been delegated to the TTB, which has enacted regulations specifically addressing
the labeling of beer products. See Cruz v. Anheuser-Busch, LLC, No. 14-cv-09670-ABASX, 2015 WL 3561536, at *4 (C.D. Cal. June 3, 2015) (citations omitted); 27 C.F.R.
§ 25.142–143. 27 C.F.R. § 25.142(a) states:
Label requirements. Each bottle of beer shall show by label or otherwise
the name or trade name of the brewer, the net contents of the bottle, the
nature of the product such as beer, ale, porter, stout, etc., and the place of
production (city and, when necessary for identification, State).

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Brewer’s name. The brewer’s name or trade name will be shown on each
case or other shipping container of bottled beer.
Second, under Cal. Code Regs. tit. 4, § 130(a),
The name and address of any manufacturer, bottler or packager appearing
upon any label of beer must be the true name and address of such person
at the time of packaging of such product. The true name of a
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manufacturer, bottler or packager shall be deemed to include a fictitious
business name for which such manufacturer, bottler or packager has duly
filed a Fictitious Business Name Statement pursuant to the provisions of
Section 17900 et seq. of the Business and Professions Code.
Plaintiff responds that they are not challenging MillerCoors’ right to use its
fictitious business name of “Blue Moon Brewing Company,” but the manner in which
MillerCoors uses it. Pl. Resp. 18. Plaintiff relies on Schnall v. Hertz Corp., 78 Cal.
App. 4th 1144 (2000) and Carney v. Verizon Wireless Telecom, Inc., 2010 WL
1947635 (S.D. Cal. May 13, 2010) for the proposition that a determination that the
defendant’s conduct is lawful does not preclude separate claims that defendant’s
conduct is unfair and fraudulent under California’s consumer protection laws. Pl. Resp.
18–21.
The Court finds Plaintiff’s reliance on these cases to be misplaced. In both
Schnall and Carney, the defendant engaged in independently fraudulent conduct that
was separable from the conduct that was specifically authorized by law. In Schnall,
plaintiff challenged Hertz rental car company’s fuel service charge. The court found
that while Hertz’s imposition of a fuel service charge was authorized by law, the
“confusing and misleading portions of the rental agreement and rental record which
purport[ed] to disclose and explain the charge” could be considered deceptive. 78 Cal.
App. 4th at 1163 (“Authorization of avoidable charges for optional services hardly
amounts to permission to mislead customers about such charges.”) Similarly, in
Carney, plaintiff paid Verizon sales tax on the full retail price of a phone purchased on
sale after a manager informed her that “Verizon was required by California state law
to charge consumers the bundled sales tax.” 2010 WL 3058106, at *1. The court found
that while Verizon was authorized by law to collect the sales tax, the law did not
require that it do so. Id. at *5. Hence, Verizon’s inaccurate representations to the
contrary were not protected by the safe harbor doctrine. Id. at *6.
Here, the conduct challenged by plaintiff is the same as the conduct authorized
by law: MillerCoors’ listing of “Blue Moon Brewing Co.,” rather than MillerCoors, as
the manufacturer on Blue Moon’s bottle and packaging. See Pl. Resp. 19–20. 27 C.F.R.
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1 §§ 25.142(a) and 25.143(a) specifically permit a beer bottle and outer packaging to
2 show by label or otherwise the “name or trade name” of the brewer (emphasis added).
3 Similarly, Cal. Code Regs. tit. 4, § 130(a) states that “[t]he true name of a
4 manufacturer, bottler or packager shall be deemed to include a fictitious business name
5 for which such manufacturer, bottler or packager has duly filed a Fictitious Business
6 Name Statement pursuant to the provisions of Section 17900 et seq. of the Business
7 and Professions Code.” MillerCoors has properly registered Blue Moon Beer Company
8 as a trade name in California’s Fictitious Business Name registry. See Def. Mot., Ex.
9 D. MillerCoors’ use of the Blue Moon Trading Company trade name on the Blue Moon
10 label is thus specifically authorized by federal and state regulations. This is thus a case
11 where, as the Schnall court put it, “the conduct found to have been lawful was precisely
12 the same as that claimed also to be ‘unfair’ and ‘fraudulent.’” 78 Cal. App. 4th at 1163
13 (citations omitted); see also POM Wonderful LLC v. Coca Cola Co., 2013 WL 543361,
14 at *5 (C.D. Cal. Feb. 13, 2013) (finding that the safe harbor doctrine applied where
15 Defendant’s labeling practices complied with FDA regulations).
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This conclusion is reinforced when the facts in the instant case are compared to

17 those in other cases where courts found that the manufacturer’s labeling practices were
18 not authorized by law. In Hofmann v. Fifth Generation, Inc., the district court found
19 the safe harbor doctrine did not apply where a vodka product was labeled as
20 “homemade.” 2015 WL 5440330, at *7. The court found that no TTB regulation
21 specifically authorized the use of “homemade” on the vodka’s label, and that it was
22 “not clear that such representations are necessarily within the TTB’s regulatory
23 purview.” Id.; see also Nowrouzi v. Maker’s Mark Distillery, Inc., 2015 WL 4523551,
24 at *4–5 (S.D. Cal. Jul. 27, 2015) (applying the same analysis). By contrast, here, federal
25 regulations specifically address which brewer name is permitted to appear on a beer’s
26 label bottle and case or shipping containers.4
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In Hofmann, Judge Miller
harbor doctrine to
28 TTB’s certificate of label approvalalso questioned the applicability of the safe at *7. In order to
(“COLA”) process. 2015 WL 5440330,

implement C.F.R. regulations, the TTB requires industry members to obtain a COLA from the TTB
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1

Plaintiff questions whether MillerCoors can take refuge in the safe harbor

2 considering that “the Blue Moon Brewing Company name is trademarked for ‘Bar
3 Services; Bar featuring Microbrewery Services; [and] Brewpub Services,’” but not the
4 “retail sale of Blue Moon beer.” Pl. Resp. 20. However, as MillerCoors correctly points
5 out, trade names and trademarks are distinguishable concepts. See Self-Realization
6 Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 908 (9th Cir.
7 1995). A trade name is “the name under which a business operates,” while a trademark
8 is a “word, phrase, logo, or other graphic symbol used by a manufacturer or seller to
9 distinguish its product or products from those of others.” Black’s Law Dictionary (9th
10 ed. 2009). MillerCoors has properly registered Blue Moon Beer Company as a trade
11 name in California’s Fictitious Business Name registry, see Def. Mot., Ex. D, and the
12 C.F.R. regulations authorize labeling beers with a brewer’s “trade name,” not
13 trademark. 27 C.F.R. §§ 25.142(a), 25.143(a).
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Plaintiff’s arguments that 27 C.F.R. §§ 7.23, 7.29(a), and 7.54(a) preclude

15 application of the safe harbor doctrine are similarly unavailing. Pl. Resp. 15–18. First,
16 27 C.F.R. § 7.23 states that “[n]o label shall contain any brand name, which, standing
17 alone, or in association with other printed or graphic matter, creates any impression or
18 inference as to the age, origin, identity, or other characteristics of the product.”
19 However, a product’s brand name refers to a “name or symbol used by a seller or
20 manufacturer to identify goods or services and to distinguish them from competitors’
21 goods or services.” Black’s Law Dictionary (9th ed. 2009). Since Plaintiff is not
22 challenging the brand name of “Blue Moon,” but the trade name of “Blue Moon
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24 prior to the public release of the alcoholic beverage. 27 C.F.R. § 7.41(a). In Hofmann, defendant
the safe harbor doctrine necessarily applies whenever the TTB approves an
25 argued thatlabel. 2015 WL 5440330, at *7. However, Judge Miller characterized the COLAalcoholic
beverage’s
approval
“informal agency action” to which
the
26 process as an 7. But see Cruz, 2015 WL 3561536, atit was unclear whetherto besafe harbor doctrine
applied. Id. at
*5 (considering COLA
a formal rulemaking
procedure); Pye, 2015 WL 5634600, at *4 (implicitly doing the same). Judge Miller’s analysis is
27 inapplicable here, since here, it is the C.F.R. regulations themselves, rather than the TTB’s COLA for
Moon,
POM Wonderful,
28 Blue harbor that authorizes Blue Moon’s labeling. See also labeling practices at *5 (finding that the
safe
doctrine directly applied where Defendant’s
complied with FDA
regulations).
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1 Brewing Company,” this regulation does not apply. Second, 27 C.F.R. § 7.29(a) states:
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Statements on labels. Containers of malt beverages, or any labels on such
containers, or any carton, case, or individual covering of such containers,
used for sale at retail, or any written, printed, graphic, or other material
accompanying such containers to the consumer, must not contain: (1) Any
statement that is false or untrue in any particular, or that, irrespective of
falsity, directly, or by ambiguity, omission, or inference, or by the
addition of irrelevant, scientific or technical matter, tends to create a
misleading impression.
However, MillerCoors’ use of the BMBC trade name on the label is not a “statement,”
but an identification of the brewer governed by the separate provisions of 27 C.F.R. §§
25.142(a) and 25.143(a) as discussed above. Third, 27 C.F.R. § 7.54(a) states:
General prohibition. An advertisement of malt beverages must not
contain: (1) Any statement that is false or untrue in any material
particular, or that, irrespective of falsity, directly, or by ambiguity,
omission, or inference, or by the addition of irrelevant, scientific or
technical matter, tends to create a misleading impression.
Again, MillerCoors’ use of the BMBC trade name is not a “statement.”
Thus, the safe harbor doctrine applies to the extent that Plaintiff’s UCL, CRLA,
and FAL claims rely on MillerCoors’ omission of their ownership interest, or their
designation of BCBM as the brewer, on the label or packaging of Blue Moon beers.5
B.

Whether a Reasonable Consumer Could Be Deceived

Plaintiff also alleges that the reasonable consumer would have been deceived by
Defendant’s representations in: (1) intentionally omitting MillerCoors’ ownership
interest on the BMBC website; (2) falsely identifying Blue Moon as a craft beer on the
MillerCoors website; (3) using the “Artfully Crafted” trademark to falsely portray Blue
Moon as a craft beer; and (4) pricing Blue Moon at a premium and placing it in retail
stores among other craft beers. See Compl. 15–16.

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Since the Court finds that the safe harbor doctrine applies to MillerCoors’ use of the BCBM
25 trade name on Blue Moon labeling, and that a reasonable consumer would not likely be deceived by
26 MillerCoors’ other representations, the Court does not address Defendant’s additional argument that
MillerCoors’ trade name and trademark registrations put Plaintiff on constructive notice of its
trade name. Def. Mot. 13–15. However, the Court observes that none
27 ownership and use of the BMBCthis proposition concern consumer protection statutes. See id. (citing
of the cases Defendant cites for
v. Woo Lae Oak, Inc., 171 F.
v.
28 H.S.W. Enterprises, Inc.1287, 1300 (2007); HydrotechSupp. 2d 135, 143 (S.D.N.Y. 2001); Fakhri3d
U.S., 31 Ct. Int’l Trade
Systems, Ltd. v. Oasis Waterpark, 52 Cal.
988, 1001 n.8 (1991)).
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1

Claims under the UCL, FAL, and CLRA that representations are misleading are

2 governed by the “reasonable consumer” test, which asks whether “members of the
3 public are likely to be deceived.” Williams v. Gerber Prods. Co., 552 F.3d 934, 938
4 (9th Cir. 2008) (“The California Supreme Court has recognized that these laws prohibit
5 not only advertising which is false, but also advertising which[,] although true, is either
6 actually misleading or which has a capacity, likelihood or tendency to deceive or
7 confuse the public). A likelihood of deception means that “it is probable that a
8 significant portion of the general consuming public or of targeted consumers, acting
9 reasonably in the circumstances, could be misled.” Lavie v. Procter & Gamble Co., 105
10 Cal.App. 4th 496, 508 (2003). Whether a business practice is deceptive generally
11 presents a question of fact that cannot be resolved on a motion to dismiss. See
12 Williams, 552 F.3d at 938. In rare circumstances, however, courts can conclude as a
13 matter of law that members of the public are not likely to be deceived. See id. at 939.
14

First, as proof that “Defendant goes to great lengths to disassociate Blue Moon

15 beer from the MillerCoors name,” Plaintiff offers the allegation that “there is not a
16 single reference to MillerCoors on the Blue Moon Brewing Company website.” Compl.
17 15. But even viewing that fact in the light most favorable to Plaintiff, in the same
18 sentence of the Complaint, Plaintiff acknowledges that “Blue Moon is prominently
19 displayed on the MillerCoors web site.” Id. The Court cannot conclude that “it is
20 probable that a significant portion of the general consuming public . . . acting
21 reasonably under the circumstances,” could be misled by Blue Moon’s internet
22 presence when MillerCoors “prominently” displays Blue Moon on their own company
23 website.
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Second, Plaintiff alleges that the reasonable consumer is likely to be deceived

25 by MillerCoors’ false identification of Blue Moon as a craft beer on their company
26 website. Id. at 16. But by the Complaint’s own terms, knowledge of MillerCoors’
27 ownership interest in Blue Moon would have prevented Plaintiff from considering Blue
28 Moon as a craft beer and paying a premium price for it. See id. As the Complaint
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1 attests, MillerCoors is a major beer manufacturer with breweries located in eight states
2 who produces more than 76 million barrels of beer on an annual basis. Id. at 15. Hence,
3 the Court cannot conclude that the reasonable consumer, viewing Blue Moon’s
4 identification as a craft beer on MillerCoors’ company website, could be misled into
5 believing that Blue Moon is an “independently brewed, hand-crafted beer” not owned
6 by MillerCoors. Id. at 16.
7

Third, Plaintiff alleges that the reasonable consumer is likely to be deceived by

8 MillerCoors’ use of the “Artfully Crafted” trademark into thinking that Blue Moon is
9 a craft beer. Id. It should first be noted that parties dispute whether or not there is a
10 legal or controlling definition of a “craft beer.” Compare Def. Mot. 18–20 with Pl.
11 Resp. 9–12. The Court declines to resolve this issue, because even assuming that there
12 is such a definition, Plaintiff cannot rely on it for their argument that the phrase
13 “Artfully Crafted” is misleading.6 “[T]o be actionable as an affirmative
14 misrepresentation, a statement must make a specific and measurable claim, capable of
15 being proved false or of being reasonably interpreted as a statement of objective fact.”
16 Vitt v. Apple Computer, Inc., 469 Fed. Appx. 605, 607 (9th Cir. 2012) (internal
17 quotation marks omitted) (affirming finding that descriptors “mobile,” “durable,”
18 “portable,” “rugged,” “built to withstand reasonable shock,” “reliable,” “high
19 performance,” “high value,” an “affordable choice,” and an “ideal student laptop” were
20 “generalized, non-actionable puffery because they are ‘inherently vague and
21 generalized terms’ and ‘not factual representations that a given standard has been
22 met’”); see also McKinney v. Google, Inc., 2011 WL 3862120, at *6 (N.D. Cal. Aug.
23 30, 2011) (“Although misdescriptions [sic] of specific or absolute characteristics of a
24 product are actionable, generalized, vague, and unspecified assertions constitute mere
25
6
Plaintiff
Blue
26 Moonais a “craftonly alleges one instance of MillerCoors explicitly stating thatis the
beer,” rather than using the phrase “Artfully Crafted.” This
so identified on MillerCoors’
website. See Compl.
27 allegation that Blue Moon isby the Complaint’s own terms, own representation could
16. But as discussed above,
this
misleading,
be alerted to the
that Blue
28 not be is owned bysince a reasonable consumer wouldon the website offact corporate
Moon
MillerCoors by its being featured
its
parent.

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1 puffery upon which a reasonable consumer could not rely.” (internal punctuation marks
2 omitted) (citations omitted)).
3

Plaintiff relies on a number of cases to support the proposition that MillerCoors’

4 use of the “Artfully Crafted” phrase is actionable. Pl. Resp. 14. However, none of them
5 are apposite. In Colgan v. Leatherman Tool Group, Inc., 135 Cal. App. 4th 663, 682
6 (2006), the court found that the “Made in USA” statement on Leatherman’s tools was
7 deceptive were parts of those products were manufactured outside the United States.
8 135 Cal. App. 4th at 682. And in Hofmann, the court found that Fifth Generation’s
9 representation of a vodka presumably mass-produced in automated modern stills as
10 “‘Handmade’ in old-fashioned pot stills” could mislead a reasonable consumer. 2015
11 WL5440330, at *8. In both cases, the defendant made a specific claim about the
12 method of production for a consumer product. By contrast, here, it is difficult to see
13 how the statement that Blue Moon is “artfully crafted” is “capable . . . of being
14 reasonably interpreted as a statement of objective fact.”
15

Plaintiff also argues that even if “[o]n their own, the terms ‘craft’ and ‘crafted’

16 might reasonably state MillerCoors’ subjective opinion of Blue Moon beer . . . when
17 used in conjunction with other representations about the product, the terms can
18 reasonably be construed as having specific meaning, and are thus actionable.” Pl. Resp.
19 11–12 (citing Williams, 552 F.3d at 939 n.3 (finding that use of the term “nutritious”
20 was not mere puffery where packaging’s other features, including calling the product
21 “fruit juice snacks,” depicting pictures of fruit, and stating that the product was made
22 with “fruit juice and other all natural ingredients,” were deceptive); Jou v. Kimberly23 Clark Corp., 2013 WL 6491158 at *7 (N.D. Cal. Dec. 10, 2013) (finding that use of the
24 term “natural” in the context of the phrase “pure & natural” could mislead the
25 reasonable consumer); Marty v. Anheuser-Busch Cos., LLC, 43 F. Supp. 3d 1333, 1342
26 (S.D. Fla. 2014) (finding that the statement “German Quality” was not mere puffery
27 when evaluated in the context of (1) other statements on cartons of Beck’s [beer], (2)
28 allegations of the defendant’s overall marketing campaign and its efforts to maintain
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1 Beck’s brand identity as a German beer; (3) the statement “[b]rewed under the German
2 Purity Law of 1516”; and (4) Beck’s German heritage including its 139–year history
3 of being brewed in Germany)). Plaintiff does not specify which other “representations
4 about the product” they are referring to in this portion of their brief. However,
5 elsewhere in the brief, Plaintiff argues that “MillerCoors’ use of the Blue Moon
6 Brewing Company trade name, when used in conjunction with the terms ‘craft’ and
7 ‘crafted’ misleads consumers by implying that Blue Moon is a true craft beer.” Pl.
8 Resp. 20. But since MillerCoors’ use of the BCBM trade name in Blue Moon’s labeling
9 and packaging is specifically protected by the safe harbor doctrine, Plaintiff cannot
10 argue that MillerCoors’ usage of that trade name contributes to a deceptive atmosphere
11 or context within which MillerCoors’ use of the phrase “Artfully Crafted” should be
12 evaluated.
13

Nor can Plaintiff argue that other features of Blue Moon’s advertising, “its

14 placement among other craft beers,” or the “premium price [Blue Moon] commanded”
15 either provide a deceptive context or are misleading in themselves. First, Plaintiff
16 pleads no other features of Blue Moon’s advertising. Second, Plaintiff does not allege,
17 and provides no factual allegations from which the Court could reasonably infer, that
18 MillerCoors has any control over where retailers place Blue Moon on their shelves.
19 Third, Plaintiff points to no case supporting the proposition that the price of a product
20 can constitute a representation or statement about the product. See also Boris v. Wal21 Mart Stores, Inc., 35 F. Supp. 3d 1163, 1169 (C.D. Cal. 2014) (finding that the price
22 of a migraine medication did not constitute a representation or statement about the
23 product that could support consumer claims against retailer under the UCL, CLRA, or
24 FAL).
25

C.

26

MillerCoors argues that Plaintiff lacks standing to seek injunctive relief, because

Injunctive Relief

27 the Complaint states that Plaintiff has not purchased Blue Moon since finding out it is
28 produced by MillerCoors in July 2012, and does not state that Plaintiff has any plans
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1 to purchase Blue Moon in the future. Def. Mot. 24–28. It is well established that in
2 order to establish standing for injunctive relief, a class plaintiff must “demonstrate a
3 likelihood of future injury” not just to unnamed class members, but to the named
4 plaintiff themselves. Hodges-Durgin v. de la Vina, 199 F.3d 1037, 1044–45 (9th Cir.
5 1999). Plaintiff argues that there is a still a likelihood of future injury because the
6 Complaint does state that had he known that Blue Moon is a mass produced beer made
7 by MillerCoors, he “would not have purchased Blue Moon or would have only
8 purchased it at a lower price.” Pl. Resp. 27. In the alternative, Plaintiff argues that there
9 is still a likelihood of future injury because “nothing prevents MillerCoors from
10 continuing to intentionally conceal its identity in order to pass off its mass produced
11 beers as craft beers.” Pl. Resp. 28. Neither argument is availing. First, Plaintiff’s
12 statement in the Complaint as to whether he would have purchased Blue Moon at a
13 lower price in the past had he known it was brewed by MillerCoors does not bear on
14 whether Plaintiff has a future intent to purchase Blue Moon. Second, the likelihood of
15 future injury Plaintiff must establish for the purposes of standing must relate to Blue
16 Moon beer, not MillerCoors’ other products, since Plaintiff has made no allegations
17 concerning any other MillerCoors product in the Complaint. See Carrea v. Dreyer’s
18 Grand Ice Cream, Inc., 2011 WL 159380, at *3. Accordingly, Plaintiff is not entitled
19 to seek injunctive relief.
20

D.

21

Fed. R. Civ. P. 15 provides that courts should freely grant leave to amend when

Leave to Amend

22 justice requires it. Accordingly, when a court dismisses a complaint for failure to state
23 a claim, “leave to amend should be granted unless the court determines that the
24 allegation of other facts consistent with the challenged pleading could not possibly cure
25 the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992)
26 (internal quotation marks omitted). Amendment may be denied, however, if amendment
27 would be futile. See id.
28

The Court will grant Plaintiff leave to amend in order to cure the deficiencies
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1 identified in the complaint. The Court does not find it impossible that the Plaintiff
2 could allege other facts as to MillerCoors’ advertising or sales practices that would
3 support their claim that MillerCoors deceptively or misleadingly represents Blue Moon
4 as a craft beer. However, the Court cautions that the Plaintiff cannot rely on
5 MillerCoors’ use of the BCBM trade name in Blue Moon’s label or packaging for their
6 consumer protection claims. Nor, standing alone, is MillerCoors’ use of the “Artfully
7 Crafted” trademark sufficient.
8
9

CONCLUSION
Counsel are advised that the Court’s rulings are tentative, and the Court will

10 entertain additional argument during the October 23, 2015 hearing.
11

IT IS SO ORDERED.

12
13 DATED: October 21, 2015
14
15

HON. GONZALO P. CURIEL
United States District Judge

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