Beer and Corn Syrup: Deception or Consumer Preference?
/If you can remember way way back to February 2019, the internet and agricultural media were abuzz over the Bud Light Super Bowl commercial criticizing Miller Light and Coors Light for using corn syrup. Since the Super Bowl, Bud Light continued to run more corn syrup ads. Were the ads deceptive or did they just cater to consumer preferences?
MillerCoors quickly responded to the advertisements: first, it sued Anheuser Busch and alleged the commercial intentionally misled consumers to believe there was corn syrup in their beer. MillerCoors admitted it uses corn syrup to aid fermentation. Bud Light uses rice the same way. The sweetener gets consumed by the yeast during fermentation and is not present in the final product. The suit also alleged Anheuser Busch used corn syrup to make many of its other beers. Second, MillerCoors took out a full page ad in the New York Times, noting agriculture’s pushback against Bud Light’s attack on corn syrup. Even the National Corn Growers Association chimed in.
On May 24, 2019, a federal judge in the Western District of Wisconsin ruled partially in favor of MillerCoors and barred Anheuser Busch from using specific language featured during the Super Bowl ad campaign in any future advertising. In particular, Anheuser Busch is prohibited from using the following language:
Bud Light contains “100% less corn syrup;”
Bud Light in direct reference to “no corn syrup” without any reference to “brewed with,” “made with” or “uses;”
Miller Lite and/or Coors light and “corn syrup” without including any reference to “brewed with,” “made with” or “uses;” and
Describing “corn syrup” as an ingredient “in” the finished product.
But the ruling did not give MillerCoors everything it wanted. The Court’s ruling allows Bud Light to continue running certain corn syrup ads, including the Super Bowl ad that started it all. The ruling does not address whether Anheuser was diluting MillerCoors’ trademarks or whether it must remove labeling on Bud Light cans which says “no corn syrup.” MillerCoors frames this as a case about truth in advertising, while Anheuser Busch counters that its ads are designed to bring real transparency to the industry. The Court noted that the point of the ads was to capitalize on market research showing consumers did not differentiate between high fructose corn syrup (HFCS) and regular corn syrup, and that people believed HFCS was an unhealthy choice. After the commercials ran, MillerCoors (for the first time) began receiving consumer communications questioning the use of HFCS in the beer.
- Anheuser Busch ad executive, explaining the “no corn syrup” advertisements, as recounted at page 11 of the Court’s May 24, 2019 Order
The Court’s order requiring Anheuser to immediately change its behavior (called a preliminary injunction) means the Court believes MillerCoors is likely to ultimately succeed on at least some of its false advertising claims by demonstrating the Bud Light ads were misleading. The Court also denied Anheuser Busch’s motion to dismiss the lawsuit. A copy of the Court’s ruling is available here.
On June 24, 2019, MillerCoors appealed the Court’s order, seeking clarification as to whether evidence of intent to deceive consumers gave rise to a presumption of harm in trademark cases.
