Beer. An alcoholic beverage traditionally made with four ingredients: water, barley, yeast, and hops. But what about corn syrup?
Anheuser-Busch claims in a recent ad campaign that MillerCoors uses corn syrup to brew Miller Lite and Coors Light, while Anheuser does not to brew Bud Light. This campaign landed Anheuser in federal court in the Western District of Wisconsin, where MillerCoors sued Anheuser for false advertising on March 21, 2019 and moved for a preliminary injunction a week later. In its PI motion, MillerCoors asked the court to prohibit Anheuser from saying or implying, in any advertisement, that either Miller Lite or Coors Light contains, or is made or brewed with, corn syrup or high fructose corn syrup. Anheuser is expected to oppose the motion.
Anheuser’s ad campaign began during Super Bowl LIII, when the nearly 100 million viewers of the Big Game saw its now (in)famous Bud Light ad entitled Special Delivery. The ad, set in medieval times, depicted the Bud Light Kingdom’s arduous journey to return an improperly delivered barrel of corn syrup to its rightful owner—either Miller Lite or Coors Light. The ad makes only two claims expressly: that both Miller Lite and Coors Light “use” or are “brewed” with corn syrup, and that Bud Light is “brewed with no corn syrup.”
Since the commercial aired, Anheuser has embarked on an extensive, multi-faceted advertising campaign centered on Bud Light’s lack of, and Miller Lite’s and Coors Light’s “use” of, corn syrup. These are a few examples:
While MillerCoors complains that Anheuser’s ad campaign constitutes false advertising, the ads say nothing that’s literally false. In fact, MillerCoors proudly admits to using corn syrup as a “fermentation aid” at the beginning of the brewing process for Miller Lite and Coors Light. But it maintains that any corn syrup is burned up as the beers are brewed, and no corn syrup makes it into the final product. And Anheuser likely knows this—because its ads don’t say that Miller Lite or Coors Light contain corn syrup.
So, what does MillerCoors have to complain about?
Well, false advertising under the Lanham Act prohibits not only statements that are literally false but also statements that are literally true but convey a materially false or misleading impression. It’s just that different proof is required to prove the claim. Literally false ads are presumed deceptive with no additional evidence. Conversely, when the claim is that an ad is literally true but misleading, the plaintiff must produce evidence of actual consumer confusion based on the ad.
Here, MillerCoors complains that Anheuser’s ads create the “demonstrably false” consumer impression that the Miller Lite and/or Coors Light that they drink contain corn syrup—or, worse, high fructose corn syrup—and are thus inferior to or unhealthier than Bud Light.
This dispute is not the first time a court has dealt with this type of complaint.
For example, in a case last year, the Seventh Circuit (the Circuit in which MillerCoors filed) affirmed a preliminary injunction order regarding a cheese commercial that had disparaged a competitor’s dairy products containing the growth hormone rbST while claiming that the advertiser’s rbST-free cheese was food “[y]ou can feel good serving.” The ad said nothing that was literally false about rbST. Rather, it implied cheese containing rbST was unhealthier than its rbST-free counterpart. The Court held, however, that there was “[n]o significant difference” between dairy products with or without rbST. This false implication, coupled with a demonstrated decrease in consumer demand for cheese with rbST, led the Court to find the ad materially deceptive under the Lanham Act.
Two federal district courts also granted preliminary injunctions against Chobani regarding its yogurt ad campaign, #NOBADSTUFF. Chobani’s ads were framed around ingredients contained in its competitors’ yogurts—Sucralose in Dannon Light & Fit Greek yogurt and Potassium Sorbate in Yoplait Greek 100 yogurt. The Dannon-specific ad contained text reading, “There’s sucralose used as a sweetener in Dannon Light & Fit Greek! Sucralose? Why? That stuff has chlorine added to it!” And the Yoplait-specific ad read, “Yoplait Greek 100 actually uses preservatives like potassium sorbate. Potassium sorbate? Really? That stuff is used to kill bugs!” While both ads were literally true, the courts found they conveyed the false (and obviously material) impression that Dannon’s and Yoplait’s yogurts were unsafe to eat.
These prior decisions show that even if Anheuser did not make any literally false statements, its ads are not insulated against false advertising claims. Anheuser may still be liable under the Lanham Act if the judge finds that they created the false impression in consumers’ minds that Miller Lite and Coors Light contain corn syrup when they don’t—and that consumers considered this material to their beer-buying decision. Of course, the burden of proof will fall on MillerCoors, but it has already provided two consumer surveys to the court that prove (it says) exactly this. And while we wait to see what the court decides, we can sit back, have a beer or two (presumably containing no corn syrup), and enjoy the banter between these two beer behemoths.
The case is MillerCoors, LLC v. Anheuser-Busch Cos., LLC, Case No. 3:19-cv-218 (W.D. Wis.).