When it comes to football, I am a huge fan and love watching games on TV.  However, I do not typically pay attention to the commercials during games, with one major exception:  the Super Bowl.  Like most everyone, I am always curious to see which company will have the best and the worst Super Bowl commercials.  We always expect Anheuser-Busch (maker of Bud Light) and Molson Coors (maker of Miller Lite and Coors Lite) to bring out big gun ads.  After all, for many football fans, a game day means grabbing a beer (or several), so companies spend a lot of money to convince fans to grab their brands over others.  The competition rose to a new level in Super Bowl LIII when Anheuser-Busch introduced its ad campaign mocking Molson Coors’ use of corn syrup in brewing Miller Lite and Coors Lite.  These ads not only triggered a social media battle but also a battle in the courtroom over whether the Bud Lite ads constituted false or misleading advertising.

During the 2019 Super Bowl, Anheuser-Busch started its “corn syrup” ad campaign with an ad featuring the Bud Light King and his subjects trying to return a barrel of corn syrup, which they had received by mistake, to the Miller Light and Coors Light castles.  The ad effectively told a story that Anheuser-Busch does not use corn syrup to make Bud Light, but Molson Coors uses it to make Miller Lite and Coors Lite.

You may say, “Who cares?”  A lot of people care.  In recent years, the use of high-fructose corn syrup has gained the reputation for contributing toward an unhealthy lifestyle, so the implication that your competitor uses corn syrup could move customers into your column.  But, according to Molson Coors, the corn syrup it uses is not high-fructose corn syrup, and, while the corn syrup is used for brewing, it does not end up in the final product.   Therefore, Molson Coors sued Anheuser-Busch for false and misleading advertising, alleging that “Anheuser-Busch violate[d] § 43 of the Lanham Act, 15 U.S.C. § 1125, by implying that a product made from corn syrup also contains corn syrup.”

In a series of rulings, the district court enjoined Anheuser Busch from “say[ing] or imply[ing] anything that would cause consumers to think that is rival’s products contain corn syrup.”  However, some of the Bud Lite ads were still allowed because they did not fall within the court’s injunction.  The district court also “forbid[] Anheuser-Busch from using point-of-sale packaging with the language “no corn syrup” or an equivalent icon.”  Both parties appealed to the Court of Appeals for the Seventh Circuit.

The Seventh Circuit noted that Molson Coors “acknowledges that Miller Lite and Coors Light are made using corn syrup, while Bud Light is not.”  Molson Coors also lists corn syrup as an ingredient on Miller Lite and Coors Lite.  Molson Coors, however, argues that the list of ingredients is essentially just a list of the “inputs” for making the product.  The list does not indicate what the finished product contains.  But “Molson Coors’s own managers testified that a beer ‘contains’ what’s on the ingredient list.”  While, Anheuser-Busch did not actually advertise that Miller Lite or Coors Lite “contain” corn syrup, it would be reasonable to assume the ads led some consumers to infer those beers actually contain corn syrup.

Ultimately, the Seventh Circuit found that Molson Coors had shot itself in the foot by listing corn syrup as an ingredient, touting its “Tastes Great, Less Filling” slogan, and offering that its products tasted better because of the difference between rice (used for Bud Lite) and corn (used for Miller Lite and Coors Lite).  It would be hard to enjoin Anheuser-Busch from doing essentially what Molson Coors itself had done.  Therefore, the Seventh Circuit ruled that “it is not ‘false or misleading’ … for a seller to say or imply, of a business rival, something that the rival says about itself.  Whether that ‘something’ [corn syrup] is good because it improves the flavor (Miller and Coors’s take) or bad (Bud’s) is for consumers rather than the judiciary to decide.”  The appellate court went on to say that Molson Coors was free to mock Anheuser-Busch in return for the “sneering tone” of its ads, but “[l]itigation should not be a substitute for competition in the market.”

While the Seventh Circuit found Anheuser-Busch’s ads acceptable under the facts of that case, companies must be careful to ensure they have a basis for not just the express claims in their ads but also the implied claims.