In January 2016, a class action lawsuit was filed in Massachusetts against Guinness beer for misrepresenting that Guinness Extra Stout was brewed in Dublin when it is actually brewed in Canada. Plaintiff claimed that the prominent use of “Traditionally Brewed” and “St. James’s Gate Dublin” in conjunction with “Imported Guinness Extra Stout” created a false impression that the product was manufactured, brewed, sourced, bottled and/or imported from Ireland. Plaintiff’s claim was supported by a statement on the Guinness website that “All Guinness sold in the U.K., Ireland and North America is brewed in Ireland at the historic St. James’s Gate Brewery in Dublin”. Although Guinness Extra Stout includes a small disclosure on the back label indicating that the beer is actually brewed in Canada, plaintiff argued that the disclosure was not sufficiently conspicuous, as compared to the prominent references to Ireland made on the outer packaging and front labels.

Last month, a Massachusetts federal judge dismissed plaintiff’s claims to the extent that they were based on labels affixed to Guinness Extra Stout bottles and packaging. Since the labels were approved by the Alcohol Tobacco Tax and Trade Bureau (“TTB”), they were entitled to safe harbor protection. However, the Court found that the TTB did not approve the clearer statement on the Guinness website that “all Guinness sold in … North America is brewed in Ireland” and therefore, such claims could proceed.

TAKEAWAY: Check your websites. This case should serve as a reminder that misrepresentations on a website or in advertising may survive a motion to dismiss, even if similar claims approved by TTB are barred.