During last year’s Super Bowl, Anheuser-Busch ran a commercial in which a large barrel of corn syrup is delivered to the Bud Light castle. Because Bud Light doesn’t use corn syrup, the Bud Light King and a rag-tag group of knights attempt to deliver the barrel to the Miller Light castle, where it’s declined (because they already received their shipment) and, finally, to the Coors Light castle, where a guard acknowledges that their beer is brewed with corn syrup.
Molson Coors (formerly MillerCoors) filed a lawsuit, alleging that the commercial, and a series of other related ads, were misleading. Although the company acknowledged that it uses corn syrup as a fermentation aid during the brewing process, it stated the sweetener is broken down during the process and, thus, isn’t in the beer itself. Molson Coors argued, however, that the the ads falsely suggested that corn syrup is actually in the beer.
After more than a year of legal battles, the Seventh Circuit handed Anheuser-Busch a decisive victory in a short, five-page opinion. Whether or not an ad is misleading is often complicated and turns a lot on the specific language and context of the ads. Most decisions, then, carefully analyze the ads and consider consumer perception. The Seventh Circuit took a different approach in this instance, noting that “this case is and always has been simple.”
The Seventh Circuit’s decision turned largely on ingredients panels for Miller Light and Coors Light beers, both of which list “corn syrup” as an ingredient. Molson Coors argued that just because something is listed as an ingredient, doesn’t mean that the beer contains it. The Court wasn’t sympathetic, though, noting that even if the Bud Light ads infer that corn syrup is in the beer, the packages “yield the same inference.”
Ultimately, the Court determined that it’s not false or misleading “for a seller to say or imply, of a business rival, something that the rival says about itself.” Rather than litigating the issue, the Court suggested that “if Molson Coors does not like the sneering tone of Anheuser-Busch’s ads, it can mock Bud Light in return. Litigation should not be a substitute for competition in the market.”
Advertisers may see this decision as a signal that they can get more aggressive in their ads. But before you start sneering at your competitors too much, consider that other courts may have approached this analysis differently. Consumer perception often plays a more central role in these decisions and, if a court determines that consumers take away the wrong impression from an ad, an advertiser may be held liable for that.