Consumers of Kona Beer Request Class Certification In False Advertising Suit

During a hearing on September 6, 2018, counsel for California consumers of Kona Brewing Co. (“Kona” or the “Company”) beer accused the Company of misleading purchasers into believing its beer is made in Hawaii, when it is actually brewed on the mainland in Colorado, Oregon, and Tennessee.

The packaging for Kona’s beer lists Kona, HI, as one of its brewing locations, but the only beers produced there are sold in Hawaii. Deceived into thinking the beer actually comes from Hawaii, consumers alleged they paid more for the product.

In addition to listing Kona, HI, as a brewing location, packaging for Kona beer also includes a map of Hawaii noting the location of the Kona brewery and various Hawaiian-themed images. The brewing location disclosure is printed on the label, but plaintiffs allege they never saw it, and that it is confusing regardless because the Hawaiian brewery is prominently featured on the label.

Counsel for plaintiffs explained that this case is about “the false or deceptive representations on the product packaging of Kona beers, and that presents several common questions of law and fact. One, where are the beers brewed? They’re not brewed in Hawaii, and that’s uncontested. The second question: Is the package likely to deceive a reasonable consumer? That also can be proved on a classwide basis.”

A survey consumers’ expert conducted revealed that approximately 70 percent of consumers believe Kona beer is brewed in Hawaii, and 77 percent prefer to buy Kona beer that is brewed in Hawaii.

Defense took issue with the survey because participants were not shown the bottom of the product carton, where the brewery locations are listed. However, U.S. District Judge Beth Labson Freeman was unconvinced by the argument, reasoning that “[i]f I want to read the bottom of your carton in the refrigerator section of my grocery store, I’m going to have six bottles of beer on the floor, broken, and I’m not going to buy anything. So, I don’t think you’re ever going to reproduce that in front of a jury.”

Judge Freeman previously ruled in September 2017 that “the Hawaiian address, the map of Hawaii identifying Kona’s brewery on the Big Island, and the statement ‘visit our brewery and pubs whenever you are in Hawaii,’ are not mere puffery, but are specific and measurable representations of fact that could deceive a reasonable consumer into believing that the six- and 12-packs of Kona beer were brewed in Hawaii.”

Plaintiffs have requested certification of two classes, for purchasers of six-packs and 12-packs of Kona beer from February 28, 2013, to the present.

The legal team at Shepherd, Finkelman, Miller & Shah, LLP (“SFMS”) has significant experience litigating class action and consumer protection matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier or Chiharu Sekino. We can also be reached toll-free at 866-540-5505.

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Eslinger, Bonnie. “Kona Beer Drinkers Seek Class Cert. In Packaging Suit.” Law 360. Last modified on September 6, 2018.