The Seventh Circuit recently resolved a false advertising lawsuit involving beer giants Anheuser-Busch, the maker of Bud Light, and Molson Coors, which makes Miller Light and Coors Light. At the center of the dispute – one of the more high-profile advertising disputes in recent years – was corn syrup, specifically, a Bud Light ad campaign targeting Molson Coors’ use of corn syrup when brewing Miller Lite and Coors Light.
Molson Coors claims the campaign was designed to create the false impression that its beers actually contain corn syrup, while Anheuser-Busch argued that its ads merely highlight a factual aspect of Molson Coors’ brewing process. After a split decision at the trial level, the Seventh Circuit resolved the dispute in favor of Anheuser-Busch.
Bud Light’s Corn Syrup Ad Campaign
The dispute began during the 2019 Super Bowl when Anheuser-Busch first began an ad campaign mocking Molson Coors’ (then MillerCoors) use of corn syrup when brewing Miller Light and Coors Light. The most memorable of the ads – an extension of Bud Light’s medieval-themed “Dilly Dilly” campaign – featured the Bud Light King and his subjects attempting to return a mistakenly delivered barrel of corn syrup to the Miller Light and Coors Light castles. A large-scale ad campaign ensued, the central point being that corn syrup is used to brew Miller Light and Coors Light but not Bud Light. “Brewed with no corn syrup” became a common refrain in Bud Light ads, and “no corn syrup” was added to the Bud Light packaging.
Molson Coors took umbrage, claiming the ads were designed to create the false impression that Miller Lite and Coors Light actually contain corn syrup. Molson Coors readily admits that corn syrup is used as a fermentation aid in the brewing process for Miller Light and Coors Light – in fact, it is listed on thier “ingredients” lists – but emphasizes that there is no corn syrup remaining in the finished product. At first, Molson Coors took to social media to defend itself, but, as Anheuser-Busch expanded the campaign, the company turned to litigation.
In March 2019, Molson Coors filed suit in the Western District of Wisconsin, alleging false advertising under the Lanham Act. In the complaint, Molson Coors claimed the Bud Light ad campaign was intentionally designed to mislead consumers into believing that when they drink Miller Lite or Coors Light they are consuming corn syrup. Even if the ads never explicitly said so, this was, according to Molson Coors, their clear intention and likely effect. Molson Coors also argued that the campaign was especially damaging because corn syrup is a “triggering” substance: “Consumers have become increasingly health-conscious in recent years, and negatively associate corn syrup, particularly the [high fructose corn syrup] sweetener added to some soft drinks … with adverse health effects and an unhealthy lifestyle.”
The trial judge partially granted Molson Coors’ request for a preliminary injunction, requiring Anheuser-Busch to pull some ads but not others. The judge found that Anheuser-Busch could continue accurately stating that Miller Lite and Coors Light are “brewed with” or “made with” corn syrup (and that Bud Light is not), but found other claims to be problematic. For instance, the judge prohibited Anheuser-Busch from stating that Bud Light contains “100% less corn syrup” than Miller Lite or Coors Light and from using the words “corn syrup” on their own (i.e., without “brewed with” or “made with”) when discussing Miller Lite or Coors Light. While Molson Coors appealed the order, feeling it did not go far enough, Anheuser-Busch considered it a victory. But, in a subsequent order, the judge extended the ban to include all Bud Light product packaging using the words “no corn syrup,” leading Anheuser-Busch to appeal.
The Seventh Circuit’s Decision
On May 1, the Seventh Circuit sided with Anheuser-Busch, finding that the Bud Light corn syrup campaign does not run afoul of the Lanham Act’s prohibition on false and misleading advertising. In a brief opinion, the court largely sidestepped questions about the false implications or misleading intent of the ad campaign. Instead, the court repeatedly stressed the fact that Molson Coors itself admits corn syrup is used when making Miller Lite and Coors Light.
Whatever consumers’ takeaway might be, the court was ultimately unwilling to prohibit Anheuser-Busch from saying something already stated on Molson Coors’ product packaging, explaining:
At all events, Anheuser-Busch has not advertised that its rival’s products “contain” corn syrup. True, it has made statements from which some consumers doubtless infer that some corn syrup avoids fermentation and makes it into the beer. Still, Molson Coors’s own statements yield the same inference.
Molson Coors argued that listing corn syrup as an “ingredient” is not the same as admitting that the final products contain corn syrup, suggesting that “ingredients,” as used on the Miller Lite and Coors Light packaging, is more appropriately interpreted to mean something closer to “inputs.” But the court was unwilling to wade too far into the semantics: “By choosing a word such as ‘ingredients’ with multiple potential meanings, Molson Coors brought this problem on itself. It is enough for us to hold that it is not ‘false or misleading.’”
This dispute is a case study in the significance of implied claims in advertising. Molson Coors’ objections to the Bud Light campaign were less about what the ads literally stated – that Miller Lite and Coors Light is “made with” or “brewed with” corn syrup” – than what the company felt they implied – that the beers themselves contain corn syrup. While Anheuser-Busch ultimately prevailed, the case serves as an important reminder to advertisers that they are responsible for not only the literal message of their advertising (express claims) but also the reasonable inferences of those claims (implied claims). Under federal and state advertising laws, and Federal Trade Commission regulations, advertisers should have proper substantiation for all express and implied claims prior to running an advertisement.