Welcome back to Legal Geek. This week, we cover the latest developments in how the Bud Light medieval ad campaign and it's very strange turn as of the Super Bowl this year has led the biggest beer makers in the U.S. to a court battle with one another over corn syrup, of all things.
During the Super Bowl, Anheuser Busch launched a new campaign with a 60-second ad showing their medieval king marching casks of corn syrup to the castles of competitors Coors Light and Miller Lite. This ad and the many that have followed in the weeks since continually make the point that Bud Light is not made or brewed with corn syrup. Who knew we consumers cared one iota about what was in our mass market beer?
Regardless, MillerCoors, which brews and sells both those other varieties of beer, has sued Anheuser for allegedly violating federal false advertising laws. But here's the fascinating part of the case: everything in the Bud Light ads is technically true.
It is true that MillerCoors uses corn syrup as a fermentation aid during brewing, but this corn syrup is consumed by the yeast in the process and thus is not present anymore in the final product. MillerCoors does not dispute this fact. So how could there be false advertising claims? Well, the federal law is more complicated than just dealing with the truth.
Insert "You can't handle the truth!"
The Lanham Act, which governs false advertising, has been interpreted by courts in prior decisions to prohibit false statements as well as "literally true" statements that nonetheless mislead or confuse consumers. Courts have also ruled that indirect statements can be proven false by necessary implications drawn from the broader context of the ad. So according to MillerCoors, even though Anheuser has been careful not to say that the final beer products Miller Lite and Coors Light contain corn syrup, the implication is that this sweetener is in the final product. Or even worse, that the much-maligned high fructose corn syrup is in these beers when bottled and sold on store shelves.
Proving false advertisement under such theories is complicated and relies heavily on actual evidence from consumers about being misled or confused. Given the technical sophistication of your average mass market beer drinker consumer, it may be possible for MillerCoors to produce such evidence. But this is no slam dunk, and it could be a long and costly court battle between these brewing giants.
What will happen much sooner is a judge ruling on MillerCoors' request for a preliminary injunction on the corn syrup ad campaign. When dealing with negative claims about competitors in ads, federal judges often defer to the potential harm that can be done and that makes it more likely an injunction will be granted. Which will pull those Bud Light ads off the air until the case is resolved. Perhaps corn syrup will finally be the end of the Dilly dilly ad chain stemming back years.
Regardless, MillerCoors, which brews and sells both those other varieties of beer, has sued Anheuser for allegedly violating federal false advertising laws. But here's the fascinating part of the case: everything in the Bud Light ads is technically true.
It is true that MillerCoors uses corn syrup as a fermentation aid during brewing, but this corn syrup is consumed by the yeast in the process and thus is not present anymore in the final product. MillerCoors does not dispute this fact. So how could there be false advertising claims? Well, the federal law is more complicated than just dealing with the truth.
Insert "You can't handle the truth!"
The Lanham Act, which governs false advertising, has been interpreted by courts in prior decisions to prohibit false statements as well as "literally true" statements that nonetheless mislead or confuse consumers. Courts have also ruled that indirect statements can be proven false by necessary implications drawn from the broader context of the ad. So according to MillerCoors, even though Anheuser has been careful not to say that the final beer products Miller Lite and Coors Light contain corn syrup, the implication is that this sweetener is in the final product. Or even worse, that the much-maligned high fructose corn syrup is in these beers when bottled and sold on store shelves.
Proving false advertisement under such theories is complicated and relies heavily on actual evidence from consumers about being misled or confused. Given the technical sophistication of your average mass market beer drinker consumer, it may be possible for MillerCoors to produce such evidence. But this is no slam dunk, and it could be a long and costly court battle between these brewing giants.
What will happen much sooner is a judge ruling on MillerCoors' request for a preliminary injunction on the corn syrup ad campaign. When dealing with negative claims about competitors in ads, federal judges often defer to the potential harm that can be done and that makes it more likely an injunction will be granted. Which will pull those Bud Light ads off the air until the case is resolved. Perhaps corn syrup will finally be the end of the Dilly dilly ad chain stemming back years.
The Bottom Line is, false advertising under federal U.S. law is more complicated than one might think because just like branding laws generally, the goal is to avoid consumer confusion and misleading in any manner. So while Anheuser has taken great pains to avoid false statements in these corn syrup ads, they still may fall afoul of the law, which would be enough to make all the mountains turn blue. Dilly dilly indeed.
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