Cacti Agave Spiked Seltzer Not Spiked with Agave Spirits Class Action

Anheuser-Busch Inbev Worldwide, Inc. makes a Cacti-brand “Agave Spiked Seltzer” that claims it is made from Blue Agave from Mexico. The complaint for this class action alleges that the product’s advertising, marketing, and labeling give the impression that the drink is spiked with agave spirits, such as tequila. However, the complaint says, the agave content is merely a syrup or sweetener.

Two classes have been defined for this action:

• The Illinois Class is all persons in Illinois who bought the product during the applicable statutes of limitations.
• The Consumer Fraud Multi-State Class is all persons in Iowa and Arkansas who bought the product during the applicable statutes of limitations.

The Agave Spiked Seltzer claims to be “Made with 100% Premium Blue Agave from Mexico and Natural Flavors for a Refreshing and Bold Taste.” The complaint alleges, “The labeling and marketing of the Product emphasize the agave plant, through words and pictures, including on the front of the cans.” Advertising and retail displays show cans of the drink standing in fields of agave plants.

The complaint alleges, “The representations are misleading because they give consumers the impression it contains a more valued type of agave ingredients than it does.”

Blue agave, says the complaint, “is costly and time-consuming to farm…” Its price fluctuates by a signigicant amount. According to the complaint, “All 100% blue agave tequila must be made from the A. tequilana ‘Weber’s Blue’ agave plant, to rigorous specifications and only in certain Mexican states.”

Tequila has been growing more and more popular in the US, and makers of tequila products have turned to premiumization to gain an advantage in the market. The complaint says, “In 2020 in the US, agave-based spirits surpassed both the rum category by volume, as well [as] whiskey’s largest subcategory, bourbon.” “As of 2021,” the complaint adds, “agave-based spirits are the third largest spirits category in the US,” after vodka and whiskey.

Because agave is a plant, the complaint alleges, it is seen as a “clean” and “light” spirit, so that consumers perceive it is better for them. The Mexican origin and the lack of industrial farming of the crop also appeal to consumers.

The complaint highlights regulations of the Alcohol and Tobacco Tax and Trade Bureau about what can be considered agave spirits. It also quotes federal labeling regulations for spirits as prohibiting “[a]ny 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.”

The ingredient panel for the drink does not list tequila or any agave spirits. The only agave ingredient listed is “Agave Syrup.” Agave syrup, the complaint claims, “is a sweetener commercially produced from several species of agave, including” blue agave.

The complaint contends, “In the context of an alcoholic beverage, consumers will expect that ‘Agave Spiked Seltzer’ means the seltzer is ‘spiked’ with agave spirits.”

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Deceptive Labels, Does Not Contain Implied Ingredients, Fraud, Negligent Misrepresentation