–Dan Kelly, Attorney
The Boston Beer Company advertises quite a bit on a radio station that I listen to. The ads are usually voiced by the company’s founder, Jim Koch (pronounced “Cook”), and in many of the ads, he says that Samuel Adams beer has “a head so thick you can float a bottle cap on it.” (You can hear one of the ads here.) I’ve never doubted the veracity of the claim, but the thought occurred to me that you could probably float a bottle cap on the heads of other beers. So I decided to find out, and the results may surprise you:
On the left is a Samuel Adams, and there is a bottle cap “floating” a ways down in the rather frothy head. But I’ll give it to them — the interior of the cap is dry, so I suppose it is floating in some sense.
The center photo is of the weakest beer I could think of — a Bud Light (OK, Coors Light is probably weaker, but I’m not going to run tests to find out). For the record, the beer had a head for about five seconds after I finished pouring (down the center, not down the side — beer needs to breathe). And, there is a bottle cap floating quite comfortably.
On the right is a glass of water, and the bottle cap is floating nicely there as well.
When it comes to false advertising, an ad need not be literally false to be considered “false advertising” in a legal sense. An ad that is misleading or that implies something that is not true could be problematic. In this case, the implication of the statement about the head on a Sam Adams is that the heads of at least some other beers are not so thick as to support a bottle cap.
Of course, for this ad to be actionable, the misleading statement also has to be material to a consumer’s purchasing decision, and that is where The Boston Beer Company is probably safe–beer purchasers are likely not running out to buy this beer because of the implied bottle cap-floating qualities of its head. This is more along the lines of puffery, which is fairly widely tolerated. (And I have a difficult time seeing a competitor making a case for being damaged by this ad.)