October 25, 2020

Volume X, Number 299

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October 23, 2020

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Seventh Circuit Cans District Court Injunction in Beer Brands Corn Syrup Suit

Last month, the Seventh Circuit reversed a district court’s decision preliminarily enjoining Anheuser-Busch from making various advertising claims related to the absence of corn syrup in Bud Light, including that Bud Light has “no corn syrup,” that Molson Coors’s competing Miller Lite and Coors Lite beers are “made with” or “brewed with” corn syrup, and that Bud Light has “100% less corn syrup” than the Molson Coors beers. Molson Coors Beverage v. Anheuser-Busch, Case Nos. 19-2200 et al. (7th Cir. 2020). We previously blogged about the complaint in this case (the plaintiff was identified by its previous name, Miller Coors) and the case’s procedural history.

The thrust of Molson Coors’s challenge is that Anheuser-Busch’s claims about Bud Light, while literally true, imply that Miller Lite and Coors Lite contain corn syrup. Supposedly, those claims are misleading because corn syrup is merely used in the brewing process of Miller Lite and Coors Lite, but is not actually present in the final products. The district court opinion found Molson Coors had shown a sufficient likelihood of success on the merits to warrant granting a preliminary injunction.

The Seventh Circuit rejected the district court’s reasoning, observing that Molson Coors itself identifies corn syrup as an “ingredient” in both Miller Lite and Coors Lite. While Molson Coors argued that its list of “ingredients” differs from what the final products “contain,” the Seventh Circuit pointed out that testimony from some of the company’s own managers equated the two. Moreover, the Bud Light advertising and packaging did not claim that Miller Lite and Coors Lite “contain” corn syrup, but merely “made statements from which some consumers doubtlessly infer that some corn syrup avoids fermentation and makes it into the beer.” Given that Molson Coors’s own statements (in the form of ingredients lists) yielded the same inference, the court refused to enjoin Anheuser Busch’s claims, stating that “it is not “false or misleading . . . for a seller to say or imply, of a business rival, something that the rival says about itself.”

The Seventh Circuit’s opinion suggests that advertisers seeking to make comparative claims about competitors may be able to insulate themselves from a false advertising challenge by drawing on claims and disclosures made by the competitor. Watch this space for further developments.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 169
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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Jeffrey H Warshafsky, Proskauer Law firm, Litigation Attorney
Associate

Jeffrey H. Warshafsky is an Associate in the Litigation Department, resident in the New York office. He is a commercial litigator with a particular emphasis on false advertising, trademark, and counterfeiting disputes. Jeff also advises clients on trademark portfolio management, anti-counterfeiting strategies, cybersquatting prevention, and other Internet-related trademark infringement matters.

212-969-3241
Carl Mazurek Litigation Law Clerk
Law Clerk

Carl Mazurek is a law clerk in the Litigation Department. His area of concentration in the firm is litigation law. Carl Mazuerk is a contributing author for the firm's blog content. 

Education 

  • New York University School of Law, J.D., 2017
  • University of Cambridge, Ph.D., 2014
  • University of Cambridge, M.Phil., 2009
  • McGill University, B.A., 2007
212- 969- 3539
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