Sadly, yesterday marked the distinct lack of an end in this publicity stunt between two major beverage brand conglomerates which means they’ve managed to wrangle another round of free advertising out of this Super Bowl campaign.
Both of them.
At the forefront of both news and advertising media.
Not just in commercials now, but in your news feed as well.
All the time.
But let us provide a ray of sunshine. This is actually a fun turn of events in the advertising world. Especially for those with a legal interest.
Let’s get started.
You’ve likely read or heard, but in case you haven’t, MillerCoors has filed a federal lawsuit against Anheuser-Busch over the corn syrup Super Bowl and related advertising. We’ve embedded the complaint for you below.
The complaint alleges causes of action for false advertising and trademark dilution.
What’s interesting is the amount of time and effort the complaint has to undertake in explaining why these two causes of action have occurred. Normally, you’d just have a straightforward claim – “they said this about me and it isn’t true.” But here, it’s not nearly that simple.
As you can guess a great deal of vetting, clearance, research probably went into creating this advertisement. The association between corn syrup and high fructose corn syrup, the notion of something being “brewed with” an ingredient as opposed to containing that ingredient. Each of the points made in the Bud Light ads are made by omission or implication rather than direct assertion.
The entire ad campaign is a brilliant exercise in going right up to a line. And it is the very reason the complaint needs to expound on the implications, and innuendos – to argue that these unstated assertions cross that line and give rise to false advertising and trademark dilution claims.
Does the assertion that Bud Light isn’t brewed with corn syrup and a statement that Miller lite and Coors Light are “made with” corn syrup, imply that the products “contain” corn syrup? This is what the suit suggests.
Even when discussing new packaging by Bud Light,
the assertion is that stating “no corn syrup” on outer packaging has such an implication:
Use of the “No Corn Syrup” symbol clearly implies that it is an additive or otherwise present in other final beer products, including those of AB’s main rivals, Miller Lite and Coors Light, which is false. With the Bud Light packaging updated in conjunction with the launch of the AB Campaign, the purposely misleading message to consumers is obvious: Coors Light and Miller Lite contain corn syrup and Bud Light does not.
Similarly, does claiming that Bud Light has “100% less corn syrup that Coors Light” or Miller Lite imply that it is present in the beer?
AB has also taken its false message on the road, placing billboards during the week of February 11, 2019 that promote the Campaign’s misleading and damaging claim that corn syrup is present in Coors Light and Miller Lite products, such as these seen in Tampa, Florida and St. Louis, Missouri:
Does posting a picture on twitter of Miller Lite next to Karo Corn Syrup imply that the corn syrup referenced in other advertisements is high fructose corn syrup or is it a brilliant play on association with no legal effect as it wasn’t made in the same advertisements, and was done under a “family portrait” caption by a different AB InBev brand?
Assuming the lawsuit actually proceeds and isn’t resolved (a distinct possibility if this is all part of a mutually beneficial publicity stunt) each of these assertions and relations will get tested and we are going to find out during motion practice how far implication and innuendo can be stretched before they create a question of fact about whether reasonable consumers are charged with assuming those implications or whether they can be understood to grasp the nuance between words like “made with” and “contains.”
It’s going to be enjoyable to watch. Also, it’s a bit sad that no mention was made of a potential violation of Federal Regulations even though it appears that the Federal Regulations’ prohibition on advertising disparaging of a competitor’s products is out the window (27 CFR §7.54(a)(2)) – which is probably a good thing as it’s likely a First Amendment violation anyhow.
Here’s a that Complaint, enjoy: