United States: False Ad Insights From Bud Light ‘Corn Syrup' Case

The original version of this article was printed in Law360 on June 17, 2019. Updates were made to reflect new developments.

You are what you eat, and consumers are becoming increasingly interested in what, exactly, that is. Consumer surveys and interviews of food company executives signal that transparency is the watchword,1 as educated and invested consumers become more focused on specific ingredients. Whereas some ingredients enjoy a health halo (kale and blueberry everything, anyone?), other ingredients are left in the shade. 

Where consumers go, advertisers follow. Some focus on touting the good, others on distancing their own ingredient lists from the bad. Some advertisers take the additional step of tying competitor’s products to ingredients with negative consumer perceptions. Enter false advertising litigation. 

The current marquee case is MillerCoors LLC v. Anheuser-Busch Cos. LLC,2 filed on March 21, 2019.    

Most agree that beer is an alcoholic beverage traditionally made with four ingredients: water, barley, yeast and hops. But what about corn syrup, a favorite villain of nutritionists? 

Anheuser claimed in a recent ad campaign that MillerCoors uses corn syrup to brew Miller Lite and Coors Light, while Anheuser does not to brew Bud Light. This campaign landed Anheuser in the U.S. District Court for the Western District of Wisconsin, where MillerCoors sued Anheuser for false advertising and moved for a preliminary injunction a week later. In its PI motion, MillerCoors asked the court to prohibit Anheuser from saying or implying, in any advertisement, that either Miller Lite or Coors Light contains corn syrup or high fructose corn syrup. 

Anheuser’s ad campaign began during Super Bowl LIII, when nearly 100 million viewers saw Bud Light’s ad titled “Special Delivery.” The ad, set in medieval times, depicted the Bud Light Kingdom’s arduous journey to return an improperly delivered barrel of corn syrup to its allegedly rightful owner — either Miller Lite or Coors Light. The ad makes only two claims expressly: that both Miller Lite and Coors Light “use” or are “brewed” with corn syrup, and that Bud Light is “brewed with no corn syrup.”  

After the Super Bowl commercial aired, Anheuser embarked on an extensive, multifaceted advertising campaign centered on Bud Light’s lack of, and Miller Lite’s and Coors Light’s “use” of, corn syrup. For example, Anheuser took out billboards with an image of a Bud Light bottle and, in large wording encompassing two thirds of the space, the statement “100% Less Corn Syrup than Miller Light” and Bud Light packaging stating “Hops. Barley. Water. Rice. No Corn Syrup. No Preservatives. No Artificial Flavors” with icons illustrating the “no” phrases. Together, the ads arguably imply that the use of corn syrup is at best inauthentic, and at worst, unhealthy.

While MillerCoors complained that Anheuser’s ad campaign constitutes false advertising, the ads say nothing that’s literally false. In fact, MillerCoors proudly admits to using corn syrup as a “fermentation aid” at the beginning of the brewing process for Miller Lite and Coors Light. But it maintains that any corn syrup is burned up as the beers are brewed, and no corn syrup makes it into the final product. And Anheuser likely knows this — because its ads don’t say that Miller Lite or Coors Light contain corn syrup.

So, if there is no false statement, what is the basis of MillerCoors’s complaint?

False advertising under the Lanham Act prohibits not only statements that are literally false but also statements that are literally true but convey a materially false or misleading impression. It’s just that different proof is required to prove the claim. Literally false ads are presumed deceptive with no additional evidence. Conversely, when the claim is that an ad is literally true but misleading, the plaintiff must produce evidence of actual consumer confusion based on the ad. 

Here, MillerCoors complained that Anheuser’s ads create the “demonstrably false” consumer impression that the Miller Lite and/or Coors Light that they drink contain corn syrup — or, worse, high fructose corn syrup — and are thus inferior to or unhealthier than Bud Light.

On May 24, 2019, the court issued a preliminary injunction against Anheuser, albeit much narrower in scope than MillerCoors initially sought. The court held that the statements in the commercials about corn syrup were literally true, but some nevertheless are likely to mislead consumers into believing the beer contained corn syrup (as opposed to corn syrup simply being used during the brewing process).3

The court found that the stand-alone claims “brewed with,” “made with,” or “use” corn syrup were literally true, and that MillerCoors was not likely to successfully prove they were misleading. By contrast, MillerCoors was found likely to succeed in showing that the claims Bud Light contains “100% less corn syrup” than Miller Lite/Coors Light and that Bud Light contains “no corn syrup” were misleading because they “support[ed] a reasonable interpretation” that the finished products “contain corn syrup” (they do not).4 The court also held that commercials stating that corn syrup is an “ingredient” “cross[] the line to encourage a reasonable consumer to believe that corn syrup is actually contained in the final product.”

Survey evidence played an important role in the court’s decision to grant the preliminary injunction. The survey found that a net 35% of respondents (after deducting noise from the control group) were misled into believing that Miller Lite and Coors Light contain corn syrup. MillerCoors also relied on consumer communications following the launch of Anheuser’s ads.  Although the court found that consumer comments provided “some anecdotal support for the survey results,” because the analysis was based on 32 communications out of 100 million people who watched the Super Bowl, they ultimately fell short of showing likely consumer deception. 

MillerCoors also pointed to social media reactions to the ads, which, it argued, proved that 28.6% of the posts showed that the authors mistakenly believed that corn syrup is present in the final product. The court, once again, held that while social media posts were helpful “anecdotal evidence,” they did not “carry the day” on their own.6

On September 4 and 6, 2019, the district court modified its earlier preliminary injunction by enjoining Anheuser from using the “no corn syrup” language and icon on its own packaging.  Acknowledging that “the packaging now at issue does not mention Miller Lite or Coors Light,” it ruled “that does not mean that it is not actionable under the Lanham Act.”  “Viewed in context of the full advertising campaign, a reasonable jury could find that the implicit message of the packaging is that other beers contain corn syrup.”  Persuasive for the district court were Anheuser and MillerCoors’ near-monopoly on the light beer market.  “[W]ith Bud Light, Miller Lite and Coors Light accounting for almost 100% of sales, that same jury could also find a substantial segment of consumers would infer that Bud Light’s principal competitors contain syrup, especially after a hundred million dollar television and print campaign misleadingly suggesting the same thing,” the court concluded.  The takeaway for the brand owner is that the overall context of a large advertising campaign matters.

The preliminary injunction decisions were, of course, appealed to the Seventh Circuit.  Without addressing the issues substantively, on October 21, 2019, the Seventh Circuit issued a limited remand requiring the district court to comply with Rule 65(d) of the Federal Rules of Civil Procedure and set an injunction in a document separate from the court’s opinion.  On October 23, the district court complied and issued an order detailing the injunction terms in a separate document.  Now we wait for the Seventh Circuit to rule substantively. 

Overall, the district court’s decisions granting a preliminary injunction against Anheuser serve as an important reminder that even truthful statements may cross the line into misleading territory if they are vague (and thus subject to multiple interpretations) and/or if the claims are analyzed in the full context of the ad.

The preliminary injunction decisions also add to the developing body of law surrounding comparative advertising claims about food ingredients, particularly those with negative consumer connotations.  

In seeking injunctive relief, MillerCoors argued that Anheuser’s campaign sought to exploit consumers’ alleged disdain for high fructose corn syrup, or HFCS, and lack of understanding that corn syrup and HFCS are not the same thing. HFCS has been a known boogeyman in advertising campaigns. 

For example, in January 2019, the National Advertising Division (NAD) issued a decision on Kraft Heinz’s claim that Unilever falsely disparaged other ketchup brands by implying that ketchup made without HFCS was more “real,” “healthier” and “better for you.” Kraft Heinz also challenged social media influencer posts, paid for by Unilever, that cautioned consumers to stay away from HFCS-containing ketchup because it is “evil” and “fake.”

Kraft Heinz also challenged Unilever’s product label, which displayed “No High Fructose Corn Syrup” next to the product name, “Real Ketchup.” Kraft Heinz argued that consumers would think that Hellmann’s was saying that its product was “real” because it contained no HFCS (and that ketchups that do contain HFCS are not real). NAD disagreed.

Because “No High Fructose Corn Syrup” was displayed in a different font and encased within a circle, NAD concluded that it was visually separated from the rest of the label and did not convey the message that the product was “real” because it had no HFCS. NAD did, however, recommend that Unilever discontinue the following claim on its website: “As we watched the foods we eat evolve and be better for us, we noticed that ketchup had not kept up. So we decided to change that. Our ketchup is made with only simple, high quality ingredients.” Although NAD recognized that the term “better” can sometimes be justified as subjective puffery, it held that in this case, the “better for us” phrase in Unilever’s advertising could be reasonably interpreted to mean that Hellmann’s Ketchup was comparatively healthier than other ketchups—a claim unsupported by the record.

Other ingredients with complicated reputations have also been at the forefront of false advertising disputes. 

In 2018 the U.S. Court of Appeals for the Seventh Circuit (the circuit in which MillerCoors filed) affirmed a preliminary injunction order regarding a cheese commercial that had disparaged a competitor’s dairy products containing the growth hormone rbST while claiming that the advertiser’s rbST-free cheese was food “[y]ou can feel good serving.”7 The ad said nothing that was literally false about rbST. Rather, it implied cheese containing rbST was unhealthier than its rbST-free counterpart. The court held, however, that there was “[n]o significant difference” between dairy products with or without rbST. This false implication, coupled with a demonstrated decrease in consumer demand for cheese with rbST, led the court to find the ad materially deceptive under the Lanham Act.

Two federal district courts also granted preliminary injunctions against Chobani regarding its yogurt ad campaign, #NOBADSTUFF.

Chobani’s ads were framed around ingredients contained in its competitors’ yogurts — sucralose in Dannon Light & Fit Greek yogurt and potassium sorbate in Yoplait Greek 100 yogurt. The Dannon-specific ad contained text reading, “There’s sucralose used as a sweetener in Dannon Light & Fit Greek! Sucralose? Why? That stuff has chlorine added to it!” And the Yoplait-specific ad read, “Yoplait Greek 100 actually uses preservatives like potassium sorbate. Potassium sorbate? Really? That stuff is used to kill bugs!” While both ads were literally true, the courts found they conveyed the false (and obviously material) impression that Dannon’s and Yoplait’s yogurts were unsafe to eat. 

All of these decisions show that even if an advertiser does not make a literally false statement, its ads are not insulated against false advertising claims. An advertiser may still be liable under the Lanham Act (or get an adverse NAD decision) if a court (or NAD) concludes that the advertisement creates a false impression in consumers’ minds about the safety or health consequences of an ingredient when the complaining party shows that consumers consider the ingredient material to buying decisions. 

Footnote

1 See  https://www.foodnavigator.com/Article/2018/09/28/Consumers-care-more-about-ingredients-than-brand-Survey and  https://www.forbes.com/sites/juliabolayanju/2019/02/16/top-trends-driving-change-in-the-food-industry/#67f071b46063

2 MillerCoors, LLC v. Anheuser-Busch Cos., LLC, Case No. 3:19-cv-218 (W.D. Wis.)

3 MillerCoors v. Anheuser-Busch Cos., 2019 U.S. Dist. LEXIS 88259 (W.D. Wis. May 24, 2019). 

4 Id. at *35-36. 

5 Id. at *39. 

6 Id. at *50.

7 Eli Lilly & Co. v. Arla Foods, Inc., 893 F.3d 375 (7th Cir. 2018).

8 Chobani, LLC v. Dannon Co., 157 F. Supp. 3d 190 (N.D.N.Y. 2016); Gen. Mills, Inc. v. Chobani, LLC, 158 F. Supp. 3d 106 (N.D.N.Y. 2016).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions