By: Charlie Atkinson

After buying nearly six minutes of airtime worth an estimated $50 million in the 2019 Super Bowl, it seems that Anheuser-Busch, the world’s largest brewer of beer and parent company to Bud Light, is willing to spend top-dollar on TV advertising.[i] While the brewer, a company with multiple products, featured several different advertising campaigns during the game, one commercial created controversy among corn farmers and members of the beer industry.[ii] The ad featured a barrel of corn syrup mistakenly delivered to a Bud Light castle and the king of Bud Light returning it to Miller Lite and Coors Light.[iii] Bud Light’s Twitter account emphasized the intention of the commercial by sharing the video with the caption “To be clear, Bud Light is not brewed with corn syrup, and Miller Lite and Coors Light are.”[iv] This advertising campaign stems from Bud Light’s push for ingredient transparency and includes labeling every package with “hops, barley, water and rice,” along with icons showing the absence of corn syrup.[v]

MillerCoors, the producer of Miller Lite and Coors Light, took issue with the campaign as corn syrup is only used to aid fermentation and is not in the final product of their beers.[vi] Bud Light uses a similar brewing process with rice syrup, that once fermented into alcohol is processed by the body in the same way.[vii] After the campaign, David Ludwig, a professor at Harvard T.H. School of Public Health found that the type of sugar used during the fermentation does not matter in the final nutritional quality.[viii] A representative from MillerCoors was especially distraught over the campaign due to the confusion it would cause consumers, stating that Anheuser-Busch was “trying to confuse consumers about the difference between high-fructose corn syrup and corn syrup.”[ix] Consumer concern likely stems from the stigma associated with high-fructose corn syrup with studies showing about 55% of Americans list the sweetener as a food-safety worry.[x]

Credit: https://unsplash.com/photos/RfL3l-I1zhc

On March 21, 2019, in response to the no corn syrup campaign, MillerCoors sued Anheuser-Busch, alleging false advertising.[xi] MillerCoors argued the campaign was deceiving as it made consumers think that there is “…corn syrup and high-fructose corn syrup in Miller Lite and Coors Light.”[xii] In the lawsuit, MillerCoors asserted a claim under the Lanham Act.[xiii] This Act holds persons liable in commercial advertising that “misrepresent the nature, characteristics, qualities or geographic region of his or another person’s goods.”[xiv] MillerCoors was granted a preliminary injunction from the U.S. District Court, Western District of Wisconsin enjoining and limiting Anheuser-Busch’s use of many phrases associated with the campaign such as “100% less corn syrup.”[xv] The Court looked to the original Super Bowl commercial, subsequent TV commercials, social media posts from Anheuser-Busch, and social media reactions from customers.[xvi] At the preliminary injunction stage, the Court rested its decision on the likelihood that Anheuser-Busch’s campaign could “deceive a substantial segment of consumers to believe that Miller Lite and Coors Lite actually contain corn syrup.”[xvii]

On September 4th, 2019, the Court modified the injunction to cover packaging in addition to TV, billboards and print advertising.[xviii] The packaging in question is the cardboard boxes used for 6-packs, 12-packs, and 24-packs of Bud Light that feature the line “no corn syrup,” along with a corn syrup icon with a cross through it.[xix] The Court will allow Anheuser-Busch to use the packaging it had on hand as of June 6, 2019, or until March 2020, whichever occurs first.[xx] In response, MillerCoors CEO stated this ruling was “another victory for the American public against deceptive advertising.”[xxi] Anheuser-Busch responded, saying, “MillerCoors is resisting demands for transparency in the ingredients used to brew its beers, but those demands are here to stay.”[xxii]

Unhappy with an incomplete bar from the advertising, MillerCoors appealed to the Seventh Circuit and oral arguments were held on September 23rd, 2019.[xxiii] An opinion could be delayed due to the District Court’s failure to comply with Rule 65 of Federal Rules of Civil Procedure for not filing separate injunctions.[xxiv] An opinion on the matter could be pivotal in helping companies plan their future advertising campaigns, especially when the campaigns compare ingredients to those of their competitors.

[i] Budweiser Spends Big on Super Bowl, Targets Small Markets, CNBC (Feb. 1, 2019, 6:06 AM), https://www.cnbc.com/2019/02/01/budweiser-spends-big-on-super-bowl-targets-small-markets-.html.

[ii] Mahita Gajanan, Bud Light Took Stance Against Corn Syrup. But Experts Say That Doesn’t Make Beer Better or Healthier, Time (Feb. 4, 2019, 7:55 PM), https://time.com/5520120/bud-light-corn-syrup/.

[iii] Id.

[iv] Id.

[v] Jenni Spinner, Updated Bud Light Labeling Toasts Product Transparency, Packaging Digest (Mar. 18, 2019), https://www.packagingdigest.com/labeling/updated-bud-light-labeling-toasts-product-transparency-2019-03-18.

[vi] Gajanan, supra note ii.

[vii] Id.

[viii] Beer Brewed Without Corn Syrup Isn't Healthier, Harvard T.H. Chan School of Public Health, https://www.hsph.harvard.edu/news/hsph-in-the-news/beer-corn-syrup-health/ (last visited Oct. 2, 2019).

[ix] David Vinjamuri, Bud Light’s Super Bowl Ad: Corn Syrup, Ethics and Mistaken Identity, Forbes (Feb. 6, 2019, 4:08 PM),https://www.forbes.com/sites/davidvinjamuri/2019/02/06/bud-lights-super-bowl-ad-corn-syrup-ethics-and-mistaken-identity/#611069a13a39.

[x] Tara Parker-Pope, WELL; In Worries About Sweeteners, Think of All Sugars, N.Y. Times (Sept. 21, 2010), https://archive.nytimes.com/query.nytimes.com/gst/fullpage-9A04E6DA143FF932A1575AC0A9669D8B63.html.

[xi] Nat Ives, MillerCoors Sues Anheuser-Busch Over Bud Light’s Corn Syrup Ads, Wall St. J. (Mar. 22, 2019), https://www.wsj.com/articles/millercoors-sues-anheuser-busch-over-bud-lights-corn-syrup-ads-11553198168.

[xii] Id.

[xiii] MillerCoors, LLC v. Anheuser-Busch Cos., LLC, 385 F.Supp.3d 730, 733 (W.D. Wisc. 2019).

[xiv] 15 U.S.CA. § 1125(a)(1)(B).

[xv] MillerCoors, 385 F.Supp.3d at 733.

[xvi] Id. at 735-42.

[xvii] Id. at 757.

[xviii] MillerCoors, LLC v. Anheuser-Busch Cos., LLC, No. 19-CV-218-WMC, 2019 WL 4187489, at *1 (W.D. Wisc. 2019).

[xix] Id.

[xx] Id.

[xxi] Robert Channick, Bud Light Ordered to Remove ‘No Corn Syrup’ from Packaging in Legal Battle with MillerCoors, Chicago Tribune (Sept. 4, 2019), https://www.chicagotribune.com/business/ct-biz-corn-syrup-packaging-bud-light-millercoors-20190904-h2lp6wv3uzcftokzcrvmhe4ctq-story.html.

[xxii] Id.

[xxiii] Lorraine Bailey, Panel Sympathetic to Budweiser in Spat Over Corn Syrup Ads, Courthouse News Service (Sept. 23, 2019), https://www.courthousenews.com/panel-sympathetic-to-budweiser-in-spat-over-corn-syrup-ads/.

[xxiv] Id.