Sheila Cruz; Deborah Esparaza; Catherine Silas v. Anheuser-Busch Companies, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHEILA CRUZ; DEBORAH
ESPARAZA; CATHERINE SILAS,
Plaintiffs-Appellants,
v.
ANHEUSER-BUSCH COMPANIES,
LLC,
Defendant-Appellee.
No. 15-56021
D.C. No.
2:14-cv-09670-AB-AS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Argued and Submitted February 7, 2017
Pasadena, California
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Plaintiffs Sheila Cruz, Deborah Esparza, and Catherine Silas sued Defendant
Anheuser-Busch, LLC, on behalf of themselves and a proposed class of California
consumers, for false advertising, omission, and breach of warranty under
California law. Plaintiffs allege that the labels on cartons containing cans of "Rita"
FILED
MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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malt beverages, including Lime-a-Rita, are misleading by using the word "Light,"
because the products contain considerably more calories and carbohydrates per
ounce than other Budweiser products. The district court dismissed the action with
prejudice under Federal Rule of Civil Procedure 12(b)(6). On de novo review,
accepting all facts alleged in the complaint as true and construing them in
Plaintiffs’ favor, Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016), we
affirm.
We assume, without deciding, that Plaintiffs’ claims are not preempted by
federal law, 27 U.S.C. § 205(e), and that California’s "safe harbor" doctrine does
not bar their claims. We hold that no reasonable consumer would be deceived by
the label on the carton into thinking that "Bud Light Lime Lime-a-Rita," which the
label calls a "Margarita With a Twist," is a low-calorie, low-carbohydrate beverage
or that it contains fewer calories or carbohydrates than a regular beer. It is clear
from the label that the beverage is not a normal beer. In addition to describing the
product prominently as a "Margarita With a Twist," the Lime-a-Rita label pictures
a bright green drink, served over ice, in a margarita glass.
A reasonable consumer, seeing that label, might compare "Bud Light Lime
Lime-a-Rita" to one of two other products: (a) a hypothetical product "Budweiser
Lime-a-Rita," made with Budweiser instead of with Bud Light, or (b) a tequila
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margarita. The hypothetical product would contain more calories and
carbohydrates than does the beverage at issue, because the hypothetical beer
component (Budweiser) has more calories and carbohydrates than the actual
ingredient (Bud Light). And a tequila margarita typically contains at least as many
calories and carbohydrates as a "Bud Light Lime Lime-a-Rita." The same
reasoning applies to the cartons containing the other "Rita" products. Accordingly,
Plaintiffs’ claims for misrepresentation and omission fail.
With respect to the claim for breach of express warranty, Plaintiffs have not
pleaded facts showing a "specific and unequivocal written statement" of warranty,
as required under California law. Maneely v. Gen. Motors Corp., 108 F.3d 1176,
1181 (9th Cir. 1997). Therefore, this claim also was properly dismissed.
AFFIRMED.
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Cruz v. Anheuser Busch, 15-56021
CHRISTEN, Circuit Judge, dissenting in part:
I write separately because I conclude that the label on the carton of this
product could deceive reasonable consumers into thinking that Bud Light Lime
Lime-a-Rita is a “light” beverage. In fact, in my view that result is likely because
the most natural comparison is between Bud Light Lime Lime-a-Rita and Bud
Light Lime. If those two products are compared, Bud Light Lime has far fewer
calories and carbohydrates. I do not agree that reasonable consumers would
compare Bud Light Lime Lime-a-Rita with “Budweiser Lime-a-Rita” or with a
margarita; the former does not exist and the latter is made with tequila—and is
decidedly not a malt beverage.
Reasonable consumers buying Bud Light Lime Lime-a-Rita could be misled
by the “light” label on the packaging because the calorie and carbohydrate counts
of Lime-A-Ritas only exist in small print on the side of the cans and this
information is not visible to a shopper looking at the outside of the cartons. See
Williams v. Gerber Products Co., 552 F.3d 934, 949 (9th Cir. 2008) (“We disagree
with the district court that reasonable consumers should be expected to look
beyond misleading representations on the front of the box to discover the truth
from the ingredient list in small print on the side of the box.”). I agree with my
colleagues that plaintiffs did not adequately plead facts showing an express
FILED
MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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warranty claim, but I would hold the plaintiffs adequately pleaded
misrepresentation and omission claims and would reverse the district court’s
dismissal of plaintiffs’ complaint.
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