All Hat, No Cattle: Suit Over Anheuser-Busch’s 5% ABV Statements Doesn’t Allege a Violation of Federally Mandated Tolerance Levels
The recent class action lawsuit filed against Anheuser-Busch Companies requesting damages is getting more attention than it deserves. The case appears to have sparked some interest given the recent Maker’s Mark fiasco about diluting alcohol content.
But the AB suit is different. It is about the advertised alcohol content, at least that’s what everyone is reporting on, and yet the suit itself says absolutely nothing worthwhile or even factual about the advertised vs. actual alcohol content.
The only real allegations about the actual alcohol content are so vague that they say nothing at all. The plaintiffs simply state that AB “intentionally and falsely overstates the alcohol content of its malt beverages.” And that AB shaves “the total alcohol content to “well below the percentage stated on its labels.” But that means nothing other than that an advertised 5.0% brew could have a 4.9% content.
The terms “overstates” and “well below” are wishy-washy wiggle words with no meaning or merit. People should stop perpetuating this news story as some statement that AB “waters down” its beer and that it misrepresents the alcohol content. Until the suit is amended or an actual number is alleged with regard to the alcohol content vs. the 5.0% representation, the complaint hasn’t said a single thing.
Moreover, the federal regulations regarding advertising alcohol content actually allow for variance and representations within a tolerance that people should be aware of.
The Federal Regulation governing Alcohol Content Statements can be found at 27 CFR 7.71.
But the TTB publishes summarized version for brewers in the Beverage Alcohol Manual at Chapter 1.
The decision to state the alcohol content is left to the brewer unless otherwise required or prohibited by state law. When the brewer chooses to advertise the content, then the TTB requires that:
Alcohol content must be expressed to the nearest 0.1% EXCEPT THAT for malt beverages containing less than 0.5% alcohol by volume, the alcohol content may be expressed to the nearest 0.01%
With regard to the tolerances or allowed variance from the stated amount to the actual amount, the TTB says:
For malt beverages containing 0.5% or more alcohol by volume – A tolerance of 0.3% above or below the alcohol content stated on the label is permissible EXCEPT THAT regardless of this tolerance:
A malt beverage labeled as containing 0.5% or more alcohol by volume may not contain less than 0.5% alcohol by volume
A malt beverage labeled as “LOW ALCOHOL” may not contain 2.5% or more alcohol by volume
A malt beverage labeled as “REDUCED ALCOHOL” may not contain 2.5% or more alcohol by volume.
So a brewer hasn’t run afoul of the Federal Regulations or the TTB if the stated alcohol content is (+/-) 0.3% from the stated content. (e.g., my advertising a 5.6% content is fine if the beer has 5.3%; I’m in trouble if my beer has 5.2%).
In fact, unless a 5.0% representation is being used for a 4.6% or below beverage, there’s really no story at all.