Are Hard Seltzers a Type of Beer? Modelo Returns to Court To Continue Battle Over Definition of Beer
(Photo: AP Photo/Peter Morgan)
Last Thursday, Grupo Modelo attempted to revive its case against Constellation Brands. The original lawsuit claimed Constellation breached its licensing agreement when it began distributing hard seltzers because the contract only allowed the company to use Modelo and Corona trademarks on beer, malt beverages or “versions” of the two. A core part of Modelo’s case is whether hard seltzers are considered beer since beer is specifically referenced in the contract. Previously, the jury sided in favor of Constellations.
While in some ways hard seltzer and beer fall within the same category in terms of what drinkers may reach for, Modelo maintains that Constellation overstepped when it created a beverage made from fermented sugar rather than malted grain.
“The hard seltzers at issue here are clear, fruity, carbonated drinks. They’re not malt beverages or beer on an ordinary understanding of those terms,” Jeffrey Bryan Wall, an attorney for Modelo said Tuesday, as reported by Courthouse News Service. “To be a malt beverage or a version of a malt beverage, a drink has to have malt. To be a beer or a version of beer, a drink has to be fermented with malt and flavored with hops.”
The fundamentals of alcohol fermentation are that yeast eats sugar and creates the by-products of ethanol and CO2. Beer is different than many other fermented beverages because it starts with starch. Starch is a substance that doesn’t readily ferment to produce alcohol; this is where malt comes in.
Malt is created by germinating grains, often barley, to a certain degree and then stopping it which is a part of the plant’s natural process that uses enzymes to convert starch into sugar. Without these enzymes or enzyme substitutes, beer cannot be made. On the other hand, sugarcane and many fruits easily ferment without much manipulation.
When the case previously went to trial, U.S. District Judge Lewis Kaplan considered the term beer to be too vague. Kaplan instructed the jury not to interpret the definition of beer as it would commonly be known.
Wall disagrees and argues beer has an “ordinary meaning” and the jury should be allowed to consider this meaning during deliberations.
Reportedly, Constellation attempted to make a hard seltzer using a malt base but ended up using sugar instead.
Wall said, “they didn’t want to just make a hard seltzer. They wanted to make it and put the Corona label on it so they could compete in the market.” “They tried to shoehorn it into a contract that doesn’t say anything about non-malt beverages.”
An attorney for Constellation Saundra Goldstein argued that there is “no malt requirement” in the agreement and the allowance for “non-alcoholic” beer contradicts Modelo’s argument regarding the “ordinary meaning” of beer.
“The one thing in my friends’ interpretation of beer… the one thing all of their dictionary definitions actually say is that it’s an alcoholic beverage,” Goldstein said. “Under their definition, beer is an alcoholic beverage.”
It is too early to say whether a judge will take the case and more importantly whether the court will be allowed to define beer.
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