A federal court judge has weighed in on the battle dubbed “Corngate” between Bud Light and competitors Miller Lite and Coors Light, denying Anheuser-Busch InBev’s motion to dismiss MillerCoors’ false advertising lawsuit.
The dispute began during Super Bowl LIII, when AB InBev launched an advertising campaign that highlighted MillerCoors’ use of corn syrup in brewing both Miller Lite and Coors Light, as compared to the rice used by AB InBev to brew Bud Light. Additional commercials, print media, billboard ads and social media marketing followed, and MillerCoors filed suit.
MillerCoors then asked the court for a preliminary injunction against the claims made by AB InBev across the various platforms. U.S. District Court Judge William M. Conley granted the motion—albeit more narrowly in scope than requested by the plaintiff.
The first category of allegedly misleading statements challenged by MillerCoors featured the phrases “made with,” “brewed with” or “uses” corn syrup. While these phrases were literally true, MillerCoors argued that when viewed as a whole, the advertisements deceived consumers into believing that the final Miller Lite and Coors Light products contain corn syrup, making them less healthy and inferior to Bud Light.
However, the court found the plaintiff failed to demonstrate a likelihood of success in demonstrating that the use of the terms was misleading. “[T]here appear to be no Lanham Act cases that allow a plaintiff to rely solely on defendant’s exploitation of consumer concerns to demonstrate that a truthful advertisement is misleading, at least where the truthful statement may well be properly understood, rather than necessarily misleading consumers,” the court wrote.
The court reached a different conclusion with regard to AB InBev’s statements that Bud Light has “100% less corn syrup than Miller Lite or Coors Light” or that it has “no corn syrup.”
“Unlike the ‘made with’ or ‘brewed with’ statement, these statements, while also literally true, support a reasonable interpretation that Miller Lite and Coors Light contain corn syrup,” Judge Conley wrote. These statements “either in stating what is not in Bud Light or in stating what is in Miller Lite or Coors Light … cross the line from simply being susceptible to misunderstanding to being misleading.”
Turning to AB InBev’s references to “corn syrup” being an “ingredient,” the court considered language in a commercial where the Bud Light King says to the Miller King: “Look, if you’re this set on imitating our kingdom, may I suggest also imitating us by putting an ingredients label on your packaging. People want to know what ingredients are in their beer. But what do I know? I’m just the king of a kingdom that doesn’t brew beer with corn syrup.”
Finding the language “problematic,” the court found MillerCoors would likely succeed in demonstrating that the statement was misleading “because it crosses the line to encourage a reasonable consumer to believe that corn syrup is actually contained in the final product.”
Relying on a consumer survey conducted by the plaintiff, Judge Conley also determined that, at the preliminary stage of litigation, the plaintiff had “some likelihood of success in proving defendant’s advertisements deceived or have the tendency to deceive a substantial segment of consumers to believe that Miller Lite and Coors Light actually contain corn syrup.”
With sufficient allegations of irreparable injury and the public’s interest in truthful advertising, the court granted a limited preliminary injunction against AB InBev in its commercials, print advertisements and social media.
The defendant may not state that Bud Light contains “100% less corn syrup” or reference Bud Light in direct connection to “no corn syrup” without any reference to “brewed with,” made with” or “uses.” Nor can AB InBev describe “corn syrup” as an ingredient “in” the finished product or mention Miller Lite and/or Coors Light and “corn syrup” without including any reference to “brewed with,” made with” or “uses.”
To read the opinion and order in MillerCoors v. Anheuser-Busch Companies, LLC, click here.
Why it matters: The Wisconsin federal court decision will likely be just the first of many in the ongoing battle between the beer brands. The Anheuser-Busch campaign “is bad for the public, bad for the beer industry and against the law,” MillerCoors CEO Gavin Hattersley said in a statement about the ruling. “We are happy to hold them accountable for it, and we look forward to the next steps in this case.” Not surprisingly, AB InBev had a different perspective, calling the decision “a victory for consumers as it allows Bud Light’s Super Bowl advertising to continue. … Bud Light remains committed to leading the alcohol industry by providing more transparency for consumers including letting them know about the ingredients that are used to brew their beer.”