A King, a Knight, and a Wizard Walk Into the Bar: A Tale of False Advertising Under the Lanham Act
By Matt Acosta
“During Super Bowl LIII, defendant Anheuser-Busch Companies, LLC, launched an advertising campaign highlighting plaintiff MillerCoors, LLC’s use of corn syrup in brewing Miller Lite and Coors Light. . . .” MillerCoors, LLC v. Anheuser-Busch Companies, LLC, 19-cv-218, 2019 WL 2250644 at *1 (E.D. Wis. May 24, 2019). So begins an opinion by Judge William Conley of the Western District of Wisconsin granting a temporary injunction barring Anheuser-Busch from continuing portions of its oh-so-effective “corn syrup” campaign. The interesting thing about this opinion is not just the entertaining facts, but that it also tackles difficult questions of federal false advertising law.
While the decision has several discussions of the various iterations of the “corn syrup” advertising campaign (and I suggest that you read all of them), here is a sampling quoted directly from the opinion:
The commercial contains the following scenes in order:
Id. at *3.
Based on this and the other commercials, banners, billboards, and in-store displays that comprised this advertising campaign, MillerCoors sued Anheuser-Busch for false advertising under § 43(a) of the Lanham Act. 15 U.S.C. 1125(a)(1)(B).
Before we continue, there is one seemingly important fact you should know. Miller Lite and Coors Light are, in fact, brewed using corn syrup. See Id. at *9 (“There is no dispute that the statements that Miller Lite and Coors Light ‘use’ or are ‘made with’ or ‘brewed with’ corn syrup are literally true.”). MillerCoors uses corn syrup as a substitute for whole grain corn or rice in its “wort,” which is the starchy base that is then fermented to make beer. Anheuser-Busch, by contrast, uses rice in its process. In either case, and for the most part, after fermentation the only thing left is alcohol, water, carbon dioxide, and aromatic flavors—a.k.a. the beer. Id. at *2.
Despite this truth, statements that are “literally true but misleading” can also violate § 43(a). Id. at *8. Under this theory, MillerCoors argues that “when viewed as a whole, the advertisements deceive consumers into believing that Miller Lite and Coors Light final products actually contain corn syrup and thus are unhealthy and inferior to Bud Light.” Id. at *9.
In determining whether MillerCoors had the requisite “likelihood of success” in its § 43(a) claim to receive a preliminary, Judge Conley uses a scalpel to analyze the various statements contained in the “corn syrup” campaign. He first finds that the statements that Miller Lite and Coors Light are “brewed with,” “made with,” or “use” corn syrup are not misleading. Id. at *9-14. Importantly, he points out that in no way does the advertising campaign suggest that corn syrup itself is necessarily bad. It was simply delivered to the wrong castle. He also recognizes that, at least in the commercial described above and its derivatives, there is no implication that corn syrup is in the final product. The Kings use the corn syrup “to be brewed” into Miller Lite and Coors Light.
The opinion rejects MillerCoor’s evidence revealing that some consumers misunderstood these statements to mean that corn syrup appeared in the final beer product. Essentially, the court finds that although some consumers might misunderstand these statements to imply that corn syrup is both bad and present in Miller Lite and Coors Light, a potential misunderstanding is different from a statement that is misleading. While this distinction seems very fine, the opinion suggests that the true test is whether the “literally true” statements are paired with “disparaging or derogatory references to the ingredients [actually present] in the competitor’s products.” Id. at *12. The Anheuser-Busch “made with corn syrup” statements had none of those.
The next challenged statements are that Bud Light contains “100% less corn syrup” than Miller Lite, and this ad comparing the two beers:
Judge Conley discusses these statements as illustrative of the distinction he is trying to draw. Unlike the “brewed with,” “made with,” or “use” statements, these advertisements highly suggest—although they don’t explicitly say—that Bud Light has “100% less” corn syrup than the Miller Lite some of us choose to drink. This is a false statement. In the ad, the finished product is paired with “corn syrup/no corn syrup” banners. Even so, there is still no suggestion that “corn syrup” is necessarily a bad thing.
This distinction, drawn around statements in the same advertising campaign, offers better guidance as to what it means to be “literally true, but misleading.” In essence, statements that are true but are still highly susceptible to misunderstanding, are not necessarily misleading. On the other hand, statements that are literally true, but themselves suggest a falsity, are misleading. Only a wizard might look at the corn syrup/no corn syrup ad depicted above and think, “Ah, this add tells us that Miller Lite is merely brewed with corn syrup while Bud Light is not,” even though there is no reference to the brewing process in the ad.
Based on this distinction the preliminary injunction barred Anheuser-Busch from advertising:
- 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.
I’ll stop here, but there is so much more to unpack in this decision. It also takes up the role of evidence of “intent to deceive” at the preliminary injunction phase; the sufficiency of survey evidence to prove likelihood of consumer confusion; and the proper analysis of “irreparable injury”, among others.
This is one to watch, not just because of the Kings, Knights, and Wizards, but also because it provides a very insightful guide to the limits of comparative advertising. The end. Let’s get a beer.
 A couple of other interesting facts: (1) in the past, MillerCoors website listed “corn syrup” as an “ingredient” of its beers (id. at *14); and (2) there is also some evidence that MillerCoors has previously attributed the flavor of its beer to the use of corn syrup in the brewing process (id. at *2).
Matt C. Acosta is an intellectual property litigator and advisor experienced in a variety of intellectual property matters. Matt advises clients on a variety of commercial issues, including effective management of e-discovery costs, developing practical expert witness strategies, and navigating the practices of Federal Courts. Though based in Texas, Matt has litigated intellectual property cases throughout the country and has argued before the Judicial Panel on Multi-District Litigation. He has represented and advised a variety of clients, including Fortune 500 companies, in the consumer electronics, biomedical, internet service, mobile application, and telecommunication technology spaces. Matt is a founding member of Jackson Walker’s Artificial Intelligence and Blockchain practice groups. He also advises clients and has written a number of articles relating to the emerging Internet of Things.
For the complete Internet of Things series, view the following articles:
- Internet of Things: What Is It and Why Do I Care?
- Internet of Things Part 2: Dogs, Cameras, and Cybersecurity
- Internet of Things Part 3: How Your Smart Toothbrush Is An Idea Worth Protecting
- Internet of Things Part 4: Can’t Our Smart Devices All Just Get Along? Interoperability, Licensing, and FRAND
The opinions expressed are those of the author and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.