‘Flavored Beers’: Lawsuit Claims Topo Chico Margarita Drinks Are Falsely Advertised, Contain No Tequila [DISMISSED]
by Erin Shaak
Last Updated on April 27, 2023
Warren v. The Coca-Cola Company
Filed: August 14, 2022 ◆§ 7:22-cv-06907
A proposed class action claims Topo Chico-brand Margarita Hard Seltzer is misleadingly advertised given the beverage does not contain tequila.
New York
April 27, 2023 – Topo Chico Margarita Hard Seltzer Class Action Dismissed
The proposed class action detailed on this page was dismissed on April 21, 2023.
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In a 24-page opinion and order, U.S. District Judge Cathy Seibel sided with Coca-Cola in finding that the challenged representations on the label of Topo Chico Margarita hard seltzer would not deceive a reasonable consumer.
According to Judge Seibel, the plaintiff’s belief that the product was a cocktail containing tequila based on the label’s use of the term “margarita” was “inconsistent with the Product’s labeling and with common sense” given that the beverage’s packaging does not refer to it as a cocktail or state that it contains tequila.
“And even assuming for the sake of argument that the Product’s front label created an ambiguity as to whether the Product contained tequila (which it did not), the ingredients panel on the back of the Product’s packaging – which has no reference to tequila – can cure that ambiguity,” the judge wrote.
Judge Seibel also disputed the plaintiff’s argument that the term “hard” led her to believe that the product contained distilled spirits, stating that a reasonable consumer would understand that the word “hard” simply means that the beverage contains alcohol.
Finally, Judge Seibel found it “not plausible” that consumers viewing the Topo Chico brand name would believe that the hard seltzer contains sparkling mineral water sourced from Monterrey, Mexico, namely because the product’s label makes no claim that it is manufactured in or connected to Mexico, or that it contains sparkling mineral water of any kind.
The judge denied the plaintiff’s request to amend the suit.
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A proposed class action claims Topo Chico-brand Margarita Hard Seltzer is misleadingly advertised given the beverage does not contain tequila.
The 14-page lawsuit alleges that certain representations on the product’s label—including the words “margarita” and “hard seltzer” and a background image of agave plants—imply that the alcoholic beverage is made with tequila. Per the suit, reasonable consumers relying on these representations are unaware that the Topo Chico drinks are actually just “flavored beers that purport to taste like a margarita.”
The lawsuit claims the Topo Chico product’s maker, The Coca-Cola Company, has sold more of the drink, and at higher prices, than it would have absent the allegedly misleading labeling.
According to the case, the consumers associate the word “margarita” with tequila given the classic cocktail of the same name is made with tequila. Moreover, the images of agave on the Topo Chico product’s label further this impression since tequila is distilled from the agave plant, the suit relays.
The term “hard seltzer” on the label also implies that the beverage is made with tequila, the suit says, given the word “hard” in the context of alcohol almost exclusively refers to distilled spirits.
The lawsuit goes on to claim that ready-to-drink margarita beverages made with tequila are not “technologically or commercially unfeasible” and are sold by competitor brands such as BuzzBox and Dulce Vida.
Per the suit, the Topo Chico Margarita hard seltzer, contrary to label representations, does not contain tequila. The product’s ingredients list reveals that the drink is made with “alcohol” and “agave syrup,” among other ingredients, the case notes.
Moreover, the Topo Chico product’s “hard seltzer” description fails to indicate to consumers the class of malt beverages that the drink falls into, which is beer, the lawsuit alleges. The suit says Coca-Cola’s use of such a term is “false, deceptive and misleading” because the drinks are made from a fermented sugar base, and not distilled spirits.
Finally, the lawsuit alleges the Topo Chico Margarita product’s labeling is misleading because the drink does not contain the sparkling mineral water sourced from Monterrey, Mexico, “which is an essential part of Topo Chico beverages.”
The suit looks to represent anyone in New York, Montana, New Mexico, Idaho, South Carolina, Utah, Mississippi and Alaska who purchased the Topo Chico Margarita products within the applicable statute of limitations period.
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