Opinion: Court’s initial ruling on corn syrup advertisement fracas comes up short

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O.K. I confess.  I watch the Superbowl as much for the commercials as the game.  Blogging about all things agriculture you can imagine my surprise when during this year's Patriots-Ram's game Anheuser-Busch dropped this little gem before halftime.

In real time I thought the Bud Light Commercial was kind of bold.  It's not every day you see this sort of direct comparison of beer brewing processes with market competitor (MillerCoors) over the merits of corn syrup.

It's a clever ad with a definitive message.  Bud Light, unlike Miller Lite and Coors Light, doesn’t mess with corn syrup.  The unspoken implication is that use of corn syrup is somehow not natural or healthy.

And just in case you somehow missed Anheuser-Busch's first half commercial Anheuser-Busch doubled down literally with two mini-ads after halftime...one with medieval barbers and the other inside a Trojan horse.

 Not surprisingly, corn farmers and corn trade groups aren't down on the Bud Light ad campaign.

And the Nielson sales data for March says sales of Bud Light is down 6 percent in March and 4 percent for the year while Miller Lite sales are up 2 percent in 2019.

MillerCoors first rebuttal was to fire off a little ad campaign of their own against Anheuser-Busch Bud Light.

But instead of letting it end there, MillerCoors has now has taken the brew-ha-ha to federal district court claiming that Anheuser-Busch engaged in a “false and misleading campaign.”

“Under the guise of “transparency,” AB singled out MillerCoors use of a common brewing fermentation aid, corn syrup, for a deliberate and nefarious purpose: it was aware that many consumers prefer not to ingest “high-fructose corn syrup” or “HFCS,” and had reportedly conducted extensive focus group testing in which it found that consumers do not understand the difference between ordinary corn syrup (used by numerous brewers, including AB itself) and HFCS, the controversial sweetener commonly used in soft drinks.”

 MillerCoors makes the argument that while it uses corn syrup  to aid fermentation it is not an ingredient in the final product.  MillerCoors wants an injunction to stop the Bud Light ads and monetary damages.

Well now the Western District of Wisconsin has weighed in. 

District Judge William M. Conley ruled partially in favor of MillerCoors, issuing a preliminary injunction banning Anheuser-Busch from using specific language from the Super Bowl ads including:

·         Bud Light contains “100% less corn syrup;”

·         Bud Light in direct reference to “no corn syrup” without any reference to “brewed with,” “made with” or “uses;”

·         Miller 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.

But the ruling was not a clear cut win for MillerCoors. 

Bud Light can continue running the Super Bowl ad that started the fight.  Nor does the ruling call for Bud Light to remove labeling on its cans which say “no corn syrup.”  

And the ruling remains silent on whether the Anheuser-Busch ads damaged MillerCoors' trademarks.

And while the court noted the ads were designed to take advantage that consumers found no difference between regular corn syrup and high fructose corn syrup, it did not go so far as to completely ban comparisons between the two ingredients in the brewing process of beer.

So this beer battle remains far from over.  

Over the summer, MillerCoors filed motions asking Conley if intent to deceive gives rise in this specific case to a presumption of trademark harm.

MillerCoors lawsuit claimed:

“AB’s Chief of Marketing for Bud Light, Andy Goeler, publicly confirmed AB’s intent to mislead consumers into believing that they will consume corn syrup if they drink Miller Lite or Coors Light. In an interview with Food and Wine Magazine, Mr. Goeler stated that AB learned through its research that corn syrup is an “ingredient that consumers prefer not to consume if they didn’t have to.” He added, “some consumers—for their own personal reasons—have concluded that they prefer not putting something like corn syrup, if they had a choice, into their body.”

Let me translate.  There's a difference between corn syrup and high fructose corn syrup

How this corn syrup question is ultimately decided can have potential implications for other food products made with corn syrup and how they are advertised before the public. 

Given the public's dislike of high fructose corn syrup, MillerCoors claims Anheuser-Busch seized on the idea that the public doesn't see any difference between high fructose corn syrup and corn syrup.  

Not quite as humorous as the ad campaign, with potential implications for other food products made with corn syrup.

About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.