Seventh Circuit: Anheuser-Busch's "Sneering" Corn Syrup Ads Not False Or Misleading

If you like beer advertisements with not-so-subtle jabs at competitors, then you will like the Seventh Circuit's recent decision in Molson Coors Beverage Co. USA, LLC v. Anheuser-Busch Cos., LLC. After over a year of battling over whether Anheuser's "corn syrup" ads, which target Molson Coors' Miller Lite and Coors Light for brewing with corn syrup, should be enjoined, the Seventh Circuit has finally ruled that none of Anheuser's "corn syrup" ads are false or misleading, and thus do not constitute false advertising, in light of Molson's own statements that corn syrup is an "ingredient" in both beers.

The dispute between Molson Coors and Anheuser-Busch dates back to early 2019, when Anheuser-Busch launched an ad campaign centered on the claim that it does not brew Bud Light using corn syrup, but its primary competitor—Molson Coors—does when brewing Miller Lite and Coors Light, a fact that Molson Coors has admitted. The campaign kicked off during Super Bowl LIII with Anheuser's dramatic Bud Light commercial called Special Delivery. The campaign continued over the coming weeks in numerous other mediums, including television ads, print ads, billboards, and even on Bud Light's own packaging. Careful in its word choice, Anheuser only explicitly stated that Molson used corn syrup to brew Miller Lite and Coors Light and Bud Light did not, all of which are true statements.

While Anheuser's ad campaign was not literally false, Molson Coors was unhappy with an implication they believed stemmed from those ads, namely, that Miller Lite and Coors Light contain corn syrup in the final product when, in fact, they do not (the corn syrup burns up in the fermentation process). As a result, Molson Coors sued Anheuser-Busch for false advertising in the Western District of Wisconsin and moved for a preliminary injunction, claiming that Anheuser's ads created the false impression that Miller Lite and Coors Light contain corn syrup or, worse, high fructose corn syrup, thus leading consumers to believe these beers are unhealthier than their alternatives and causing them to purchase beers other than Miller Lite or Coors Light.

The district court concluded¹ that Anheuser was free to continue making statements that Miller Lite and Coors Light are "made with," "brewed with," or "use" corn syrup because these statements are literally true and do not mislead consumers into believing Miller Lite and Coors Light contain corn syrup in the final product. The court, however, did enjoin Anheuser from making certain statements that either state or imply anything that would cause consumers to think that Molson's products contain corn syrup. The court specifically enjoined the following statements:

• Bud Light contains "100% less corn syrup";
• Bud Light in direct reference to "no corn syrup" without reference to "brewed with," "made with" or "uses";
• Miler Lite and/or Coors Light and "corn syrup" without including any reference to "brewed with," "made with" or "uses"; and
• Describing "corn syrup" as an ingredient "in" the finished product.

Because this injunction allowed Anheuser to continue running most of its most prominent "corn syrup" advertisements, including the Special Delivery commercial, Anheuser did not appeal this decision. Molson, however, did. Anheuser only appealed after the district court modified its decision months later, adding that Anheuser could not use point-of-sale packaging with the language "no corn syrup" or similar language.² The district court again modified its opinion two days later, giving Anheuser more time to comply with the injunction.³ Before hearing the appeals, the Seventh Circuit remanded the case to the district court requiring a single injunction encompassing all of the district court's separate orders. The district court obliged, the parties' filed their cross-appeals, and the case was ripe for adjudication in the Seventh Circuit.

Contrary to the parties' extensive briefs covering numerous procedural and substantive topics, the Seventh Circuit viewed this case as focusing on a single, simple question: Does "the true statement 'their beer is made using corn syrup and ours isn't' wrongly impl[y] that 'their beer contains corn syrup.'" Answer: No.

The Seventh Circuit focused heavily on the fact that Molson itself acknowledges that Miller Lite and Coors Light are made using corn syrup, while Bud Light is not, even going so far as listing corn syrup as an "ingredient" for both Miller Lite and Coors Light on the Molson website.⁴ Molson insisted that an "ingredients" list differs from what the finished products contain, but, according to the court, "common usage equates a product's ingredients with its constituents." While the court recognized that some of Anheuser's advertisements "doubtless infer that some corn syrup avoid fermentation and makes it into the beer," "Molson Coors's own statements yield the same inference." Given Molson's own statements, the court could not "see why [Anheuser's] statements can be enjoined."

The court boils its holding down to a simple principle: "[I]t is not 'false or misleading' for a seller to say or imply, of a business rival, something that the rival says about itself." Based on this principle and Molson's own statements, the court affirmed the district court to the extent it denied Molson's request for injunction (as to the "made with," "brewed with," or "use" statements) and vacated the injunction prohibiting other of Anheuser's "corn syrup" advertisements, leaving Anheuser free to run all of its "corn syrup" ads. The court also left Molson with the reminder that "[l]itigation should not be a substitute for competition in the market," and "[i]f Molson Coors does not like the sneering tone of Anheuser-Busch's ads, it can mock Bud Light in return."

This district court is now left with the job of determining whether there are any issues left for trial in light of this decision. Even if this opinion signals the end of the legal proceedings regarding these ads, the advertising feud between Molson and Anheuser is likely to continue. So grab a beer and enjoy the advertisements that are sure to come.

The case is Molson Coors Beverage Co. USA LLC v. Anheuser-Busch Cos., LLC, Case Nos. 19-2200, 19-2713, 19-2782, 29-3097 & 19-3116 (7th Cir. May 1, 2020).

Footnotes

¹MillerCoors, LLC v. Anheuser-Busch Cos., LLC, 385 F. Supp. 3d 730 (W.D. Wis. 2019).

²MillerCoors, LLC v. Anheuser-Busch Cos., LLC, 19-cv-218-wmc, 2019 WL 4187489, 2019 U.S. Dist. LEXIS 149954 (W.D. Wis. Sept. 4, 2019).

³MillerCoors, LLC v. Anheuser-Busch Cos., LLC, 190-cv-218-wmc, 2019 WL 4247725, 2019 U.S. Dist. LEXIS 152559 (W.D. Wis. Sept. 6, 2019).

⁴ https://www.molsoncoors.com/sites/molsonco/files/Molson%20Coors%20US%20Product%20Nutritional%20Information%203-16-20_0.pdf.

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