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Judge Nugent's Dismissal Ruling

Judge Nugent's Dismissal Ruling

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Published by Nancy Stiles
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Published by: Nancy Stiles on Jun 05, 2014
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09/01/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF OHIOEASTERN DIVISIONIN RE: ANHEUSER-BUSCH BEER)CASE NO.: 1:13 MD 2448LABELING, MARKETING AND SALES )ALL CASESPRACTICES LITIGATION )) )))JUDGE DONALD C. NUGENT)))MEMORANDUM OPINION )AND ORDE )This matter is before the Court on Defendant’s Motion to Dismiss. (ECF #13). Plaintiffs filed a Memorandum in Opposition to Defendant’s Motion, and Defendant filed a Reply. (ECF #16, 18). The Court heard oral arguments on the motion at a status conference, and following arguments, the parties were both allowed to file supplemental briefs in support of their positions. (ECF # 20, 21). Having carefully considered all of the pleadings, briefings, arguments, and relevant law, the Courtfinds that Defendant’s motion should be GRANTED.
PROCEDURAL HISTORY
This case, captioned In Re: Anheuser-Busch Beer Labeling Marketing and Sales PracticesLitigation, was transferred to this Court by the United States Judicial Panel on MultidistrictLitigation (“the Panel”), pursuant to 28 U.S.C. § 1407. Plaintiffs from a Northern District of California action moved for centralization of their case and five other actions pending against
Case: 1:13-md-02448-DCN Doc #: 25 Filed: 06/02/14 1 of 32. PageID #: 556
 
Anheuser-Busch Companies LLC (“Anheuser-Busch”) in five other districts, including, theDistrict of Colorado, the District of New Jersey, the Northern District of Ohio, the EasternDistrict of Pennsylvania, and the Northern District of Texas. (ECF #1).
1
 The Panel granted themotion for centralization, created this Multi-District Litigation (“MDL”), and assigned it to thethis Court. Following the original transfer, two additional cases, including a second action fromthe Northern District of California, and an action from the Middle District of Florida were added to the MDL. (ECF #2). Following transfer, the Plaintiffs filed a Consolidated Amended Class Action Complaint(“Complaint”), which merged all of the proposed state class action allegations from thetransferred cases, and added a proposed nationwide class action brought under Missouri law. (ECF #11). Defendant filed a motion to dismiss the entire Complaint based on Plaintiffs’ failureto allege any deviation in labeling of the alcohol content of the products at issue that exceeded the regulatory tolerance of 0.3 percent. In addition, Defendant claims that Plaintiffs failed to plead any compensable damages. The motion to dismiss was fully briefed by all parties, and theCourt heard oral arguments, off the record, at a status conference held on December 10, 2013. (ECF #19). The parties then both filed supplemental briefs in support their respective positions. (ECF #20, 21).
REGULATORY CONTEXT
The Federal Alcohol Administration Act (“FAAA”), 27 U.S.C. §§ 201,
et seq
., enacted in1935, governs the manufacture and sale of alcohol nationwide. The federal agency charged withimplementing and enforcing the FAAA is the Alcohol and Tobacco Tax and Trade Bureau
1
-2-
Case: 1:13-md-02448-DCN Doc #: 25 Filed: 06/02/14 2 of 32. PageID #: 557
 
(“TTB”), formerly known as the Bureau of Alcohol Tobacco and Firearms. The FAAAempowers the TTB to adopt regulations that ensure manufacturers “provide the consumer withadequate information as to the identity and quality of the products, [and] the alcoholic contentthereof.” 27 U.S.C. § 205(f). In pursuit of this goal, under the authority granted to them by theFAAA, the TTB has enacted several regulations specifically addressing the labeling of malt beverage products.
See
 27 U.S.C. §§ 201-219. The federal regulation that governs statements of alcohol content on labels of malt beverage products is 27 C.F.R. § 7.71(b)(2). This regulation states: [f]or malt beverages containing 0.5 percent or more alcohol by volume,statements of alcoholic content shall be expressed to the nearest one-tenth of a percent, subject to the tolerance permitted by paragraph (c)(1) and (2) of thissection. The referenced paragraph at 27 C.F.R. § 7.71(c)(1) provides: [f]or malt beverages containing 0.5 percent or more alcohol by volume, atolerance of 0.3 percent will be permitted, either above or below the stated  percentage of alcohol.Other more general regulations relating to the labeling of malt beverages include 27 C.F.R. § 7.29(a)(1), which prohibits the labeling of any malt beverage with 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.In addition to the federal statutes and regulations, some state and local governments haveenacted laws addressing the manufacturing and sale of alcoholic products, including malt beverages. Often the state and local governments adopt or refer to the federal regulationsestablished under the FAAA in their own statutes and regulations. It is undisputed that each stateat issue in this litigation has adopted the above cited federal statutes and regulations, in some-3-
Case: 1:13-md-02448-DCN Doc #: 25 Filed: 06/02/14 3 of 32. PageID #: 558

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