By Jody Coultas, J.D.
Super Bowl advertisements for Bud Light claiming Miller Lite and Coors Light contain corn syrup draw Anheuser-Busch into sticky situation.
The federal district court in Madison, Wisconsin, granted MillerCoors, LLC a preliminary injunction in a false advertising dispute with competitor Anheuser-Busch Companies, LLC related to Super Bowl commercials and a national advertising campaign highlighting MillerCoors’s use of corn syrup in the brewing process for Miller Lite and Coors Light. Anheuser-Busch was barred from advertising that Bud Light contains "100% less corn syrup" than MillerCoors’s beers, and from describing "corn syrup" as an ingredient "in" the finished product of Miller Lite and Coors Light. The court concluded that Anheuser-Busch’s advertisements stating its competitors’ beers contained corn syrup were false but declined to enjoin ads truthfully stating that the beers were "brewed with," "made with," or "use" corn syrup (MillerCoors, LLC v. Anheuser-Busch Companies, LLC, May 24, 2019, Conley, W.).
While there is no meaningful difference between using rice or corn syrup as an ingredient in terms of health or safety of the resulting beer product, Anheuser-Busch launched a nationwide advertising campaigning for its Bud Light beer featuring claims that Miller Lite and Coors Light are "made with" or "brewed with" corn syrup. The campaign was based on studies suggesting that the presence of corn syrup is a major determination in a consumers’ purchasing decision, particularly among women. While Miller Lite and Coors Light are brewed with corn syrup, Bud Light is brewed using rice as its sugar source.
MillerCoors argues that the advertisements exploit or further misconceptions about corn syrup and high fructose corn syrup (HFCS). The corn syrup MillerCoors uses in its brewing process is a distinct substance from HFCS. Also, MillerCoors conducted a survey that allegedly concluded that "more respondents who saw the test stimulus (24 percent) than who saw the control stimulus (19 percent) believed that the commercial says, suggests, or implies that corn syrup and high fructose corn syrup are the same." Prior to the launch of the Bud Light campaign, MillerCoors had not received any consumer inquiries about corn syrup, but then began receiving such inquiries. MillerCoors sought an injunction barring the allegedly misleading advertising claims.
Misleading statements. MillerCoors challenged the following four statements : (1) "made with," "brewed with" or "uses" corn syrup; (2) Bud Light has "100% less corn syrup than Miller Lite or Coors Light" or that it has "no corn syrup"; (3) referring to corn syrup as an "ingredient"; and (4) corn syrup is used to "save money" or is "less expensive."
The court concluded that MillerCoors failed to demonstrate a likelihood of success on its Lanham Act claims related to advertisements solely using the language "brewed with," "made with," or "uses" corn syrup. There is no dispute that Miller Lite and Coors Light "use" or are "made with" or "brewed with" corn syrup. However, as MillerCoors points out, the beers do not actually contain corn syrup and argues that the advertising falsely implies that corn syrup is an ingredient of Miller Lite and Coors Light and exploits consumers’ preexisting beliefs. However, the court found 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. Such an approach would appear entirely inconsistent with Seventh Circuit’s guidance.
However, the court found that MillerCoors stated its case in relation to advertising claiming that Bud Light has "100% less corn syrup than Miller Lite or Coors Light" or that it has "no corn syrup." The statements, while literally true, support a reasonable interpretation that Miller Lite and Coors Light contain corn syrup.
Also, the court found that Miller Coors was likely to succeed in demonstrating that claims referencing corn syrup as an ingredient in Miller Lite and Coors Light were misleading because the claims encourage a reasonable consumer to believe that corn syrup is actually contained in the final product. While it is not clear what constitutes an "ingredient" in the context of beer, the court considered the context of the claims. Specifically, Anheuser-Busch used the word "ingredient" or lists ingredients in conjunction with the "made with" or "brewed with" language. The statements were likely to lead a reasonable consumer to believe that Miller Lite and Coors Light contain corn syrup.
Finally, the court declined to discuss Anheuser-Busch’s statements that Miller Lite and Coors Light selected corn syrup to "save money" or because it is "less expensive." MillerCoors did not challenge the truthfulness of these statements, but instead argued that representations about the relative cost of corn syrup is misleading because a consumer would conclude that it is less healthy. The claim was "too much of a stretch to warrant discussion."
Intent. The court noted that the advertising at issue was an effort to exploit consumer likes and dislikes, interests and fears. Applying the Lanham Act to neutral, truthful statements intended to exploit or take advantage of consumer beliefs is problematic, especially in light of the arguable value of comparative advertisements in promoting intelligent consumer decision-making. Absent additional guidance from the Seventh Circuit, the court was unwilling, at this stage in the proceedings, to rely on intent as the hook to find plaintiff likely to succeed on demonstrating that the "made with," "brewed with," or "uses" corn syrup statements are misleading.
Evidence of confusion. The court found that MillerCoors presented sufficient evidence of actual consumer confusion caused by the Bud Light ads. MillerCoors submitted survey findings that "a net (after account for the control group) of 35% of consumers were misled by the ad into thinking that Miller Lite and Coors Light contain corn syrup." Anheuser-Busch’s challenges to the survey cast some doubt on the results, but fell short of providing a basis to reject the survey results out of hand. Also consumer communications indicating 18% of consumers were "likely to end or decrease their purchases of Miller Lite and/or Coors Light" because of corn syrup was anecdotal support for the survey results. Social media posts suggesting consumers were confused was also anecdotal support that bolstered the conclusion that MillerCoors presented sufficient evidence of confusion.
Irreparable injury. MIllerCoors presented sufficient evidence that it would be harmed absent an injunction, according to the court. The survey presented by MillerCoors, as well as anecdotal social media and consumer comments, supported a finding that the reputation of Miller Lite and Coors Light had been injured by the advertising at issue. This evidence also rebutted Anheuser-Busch’s sales evidence. The injunction crafted by the court ties the finding of injury only to those statements on which the court has concluded MillerCoors is likely to succeed.
Balance of harm and public interest. The court found that the injunction supported the public’s interest in truthful advertising. Also, any harm to Anheuser-Busch by enjoining it from displaying certain, limited advertisements and print materials was outweighed by the harm to MillerCoors, particularly since Anheuser-Busch discontinued most of these ads already.
The case is No. 3:19-cv-00218-wmc.
Attorneys: Anita Marie Boor (Quarles & Brady) and Christopher A. Cole (Crowell & Moring LLP) for MillerCoors, LLC. James Forrest Bennett (Dowd Bennett LLP) and Kendall W. Harrison (Godfrey & Kahn, S.C.) for Anheuser-Busch Companies, LLC.
Companies: MillerCoors, LLC; Anheuser-Busch Companies, LLC
MainStory: TopStory Advertising WisconsinNews
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