If you were watching this year’s Super Bowl, you likely saw ads by Anheuser-Busch for Bud Light. These ads highlighted the fact that MillerCoors products, specifically, Miller Lite and Coors Light, are brewed using corn syrup, while Bud Light is not. The ads were immediately met with backlash from corn lobbying groups, who fear that the ads will affect the livelihood of American corn farmers. MillerCoors was also obviously distressed by the advertisements. Since the debut of the Bud Light ads, MillerCoors has hit back through tweets and advertisements emphasizing the fact that using corn syrup during the brewing process does not mean there is corn syrup in the final product, and that many Anheuser-Busch brands, such as Natural Light and Busch Light, use corn syrup in their brewing as well. ((MillerCoors, Vimeo, (Feb. 12, 2019, 7:31 PM), https://vimeo.com/316927569?sf207685224=1)) Despite the criticism, Anheuser-Busch continued to run the ads bashing MillerCoors.
MillerCoors decided that their battle to clear their name would be better fought in the court room and on March 21st they filed a complaint for injunctive and other relief against Anheuser-Busch in the United States District Court for the Western District of Wisconsin. ((Aaron Calvin, MillerCoors escalates ‘Corn Syrup War’ with lawsuit against rival Anheuser-Busch, USA Today, (March 21, 2019, 6:46 PM), https://www.usatoday.com/story/money/2019/03/21/millercoors-lawsuit-anheuser-busch-corn-syrup-commercials/3239063002/)) The complaint alleges that Anheuser-Busch purposefully misled customers to think that Miller Lite and Coors Light were unhealthy because of the use of corn syrup. The complaint states that Anheuser-Busch performed studies that showed that consumers did not know the difference between high fructose corn syrup and corn syrup and ran the ads to purposefully mislead consumers and cause mistrust in MillerCoors brands. Interestingly, the complaint leaves out if there has been actual damage to MillerCoors profits spurred by the marketing campaign. The complaint only alleges that the advertisements have “Diluted, and Will Continue to Dilute, the Famous Coors Light and Miller Lite Trademarks.” ((Aaron Calvin, MillerCoors escalates ‘Corn Syrup War’ with lawsuit against rival Anheuser-Busch, USA Today, (March 21, 2019, 6:46 PM), https://www.usatoday.com/story/money/2019/03/21/millercoors-lawsuit-anheuser-busch-corn-syrup-commercials/3239063002/))
MillerCoors is seeking relief under the Lanham Act. Specifically, Section 43(a) and 43(c) of the Lanham Act. Section 43(a) states:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which–
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. ((15 USCS 1125 (LexisNexis, Lexis Advance through PL 116-7, approved 2/21/19))
Section 43(c) states that,
… the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. ((15 USCS 1125 (LexisNexis, Lexis Advance through PL 116-7, approved 2/21/19))
The complaint seeks a preliminary injunction that would stop Anheuser-Busch from running advertisements that expressly claim or imply that: “Coors Light and/or Miller Lite contain corn syrup or high-fructose corn syrup (HFCS); and/or Coors Light and/or Miller Lite are “made with” or “brewed with corn syrup” unless also expressly stating that corn syrup is completely converted into alcohol during the brewing process and not present in the final products; and/or Coors Light and/or Miller Lite are inferior to, or taste worse than, Bud Light because they are brewed using corn syrup; and/or Coors Light and/or Miller Lite are not made with barley and hops; and/or Coors Light and/or Miller Lite use more corn syrup than any other component.” ((Aaron Calvin, MillerCoors escalates ‘Corn Syrup War’ with lawsuit against rival Anheuser-Busch, USA Today, (March 21, 2019, 6:46 PM), https://www.usatoday.com/story/money/2019/03/21/millercoors-lawsuit-anheuser-busch-corn-syrup-commercials/3239063002/))
Anheuser-Busch isn’t the only company to face criticism for overstating health benefits of its product. A recent settlement by beverage company Canada Dry may give insight to the possible success of MillerCoors suit. Canada Dry settled for over $11 million dollars last month over a class action lawsuit that their advertisements claiming their product was “Made from Real Ginger” misled consumers. ((Canada Dry Ginger Ale ‘Real Ginger’ Class Action Settlement, Top Class Actions (Feb. 13, 2019), https://topclassactions.com/lawsuit-settlements/closed-settlements/872028-canada-dry-ginger-ale-real-ginger-class-action-settlement/)) The complaint alleged that the use of “Made from Real Ginger” in advertisements led consumers to believe that they were purchasing a healthier alternative to other sodas, when in reality, there were no health benefits to Canada Dry. ((Joseph Brean, Facing false advertising lawsuits, Canada Dry drops claim it is ‘made from real ginger’, National Post, (Jan. 11, 2019, 9:35 PM), https://nationalpost.com/life/food/facing-false-advertising-lawsuits-canada-dry-drops-claim-it-is-made-from-real-ginger)) Canada Dry no longer uses “Made from Real Ginger” in its ads.
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