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The corn syrup wars and false advertising

Like millions of Americans, I was watching the Super Bowl on Feb. 3 when Bud Light ran several commercials – the most notable of which included a bit about the use of corn syrup in Coors Light and Miller Lite. Bud Light followed up with an aggressive marketing campaign arising from a purported ingredients list and the beer’s tagline “brewed with no corn syrup.”

After seeing the initial commercial, I expected a strong response from MillerCoors, the owner of the Coors Light and Miller Lite brands. So it came as little surprise when MillerCoors filed a federal lawsuit March 21 against Anheuser-Busch Cos., Bud Light’s owner. MillerCoors asserted a claim for false advertising under the Lanham Act, the same set of federal statutes that protect trademarks and prohibit unfair competition.

The Lanham Act also prohibits false or misleading advertising and provides for a private cause of action for the same. These types of claims between competitors typically concern comparative advertising claims, for example when a business runs an advertisement comparing its products to a competitor’s products. Comparative advertising is permissible if it is truthful and is not false or deceptive or if the ad is mere “puffery,” such as “our product is the best!”

So what would MillerCoors need to prove on its claims? It would need to show that one or more of Bud Light’s statements about MillerCoors’ products were false or misleading, that those statements did or likely will deceive potential consumers and that the deception was material because it was likely to influence a consumer’s purchasing decisions.

MillerCoors is making two related arguments. First, MillerCoors is claiming that Bud Light is implying that Miller Lite and Coors Light contain corn syrup. This is false, MillerCoors argues because although the beers are brewed with corn syrup, no corn syrup is actually in the final products. Specifically, corn syrup, which is a form of sugar, is used as a “triggering event” – it is broken down and consumed by yeast during the fermentation process. The corn syrup is converted into alcohol, carbon dioxide, which carbonates the beer, and a small amount of residual basic sugars.

Second, MillerCoors claims that Bud Light is attempting to mislead consumers into believing that Miller Lite and Coors Light are made with high fructose corn syrup sweetener, which MillerCoors claims has an even more negative connotation.

Who will prevail in the lawsuit? It is hard to say. MillerCoors likely will attempt to collect survey evidence to help prove that consumers are being deceived. Bud Light likely will argue it never claimed corn syrup was in the final product and that all of its statements are true. As much as MillerCoors may want to prevail on the merits, there is also a public relations aspect to this lawsuit whereby MillerCoors hopes to educate its consumers and potential consumers. Bud Light, meanwhile, clearly is not backing down and has continued its aggressive campaign.

Regardless of who wins the lawsuit or the PR battle that is currently raging, lawsuits like these are a good reminder of the risks and rewards of comparative advertising. Comparative advertising can be a useful tool to highlight the superior quality of your goods or services over a competitor’s, but because the confrontation is so direct, it also often leads to legal disputes.

Companies considering comparative advertising should be prepared to defend and substantiate their claims and should ask what evidence, tests or data support the statements being made in the advertising.

April 23, 2019

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