A three-judge panel vacated an injunction preventing Bud Light ads from referring to its competitor’s use of corn syrup.
CHICAGO (CN) — Anheuser-Busch cannot be prevented from making advertising claims about Miller’s use of corn syrup in Miller Lite beer when Miller itself lists the sweetener on its beer’s ingredients list, the Seventh Circuit ruled Friday.
MillerCoors, which produces Miller Lite and Coors Light, Bud Light’s main competition, sued Anheuser-Busch in federal court last March over an ad it ran during Super Bowl LIII accusing Miller and Coors of having corn syrup in them.
“AB singled out MillerCoors use of a common brewing fermentation aid, corn syrup, for a deliberate and nefarious purpose,” the complaint states.
MillerCoors claims the ad, and the rest of Budweiser’s campaign, confused consumers on purpose.
Corn syrup is a common ingredient used during the fermentation process for many beers, including some made by Anheuser-Busch, but the corn syrup is merely a food for the beer yeast to eat, leaving none in the finished beverage, the brewing giant says.
However, MillerCoors lists corn syrup as an ingredient in both Miller Lite and Coors Lite on its website.
“I thought corn syrup was a side process,” Michael Risch, vice dean and law professor at Villanova University’s Charles Widger School of Law, told Courthouse News. “[But its] literally on the ingredients list. That’s a killer fact for Miller.”
Anheuser-Busch allegedly spent over $13 million to run its Super Bowl ad, and even more on the campaign that followed.
U.S. District Judge William M. Conley, a Barack Obama appointee, granted MillerCoors — now called Molson Coors — a preliminary injunction prohibiting Anheuser-Busch from referring to its competitor’s use of corn syrup in its advertisements.
But the Seventh Circuit vacated the injunction on Friday, after hearing oral arguments just three days before.
“By choosing a word such as ‘ingredients’ with multiple potential meanings, Molson Coors brought this problem on itself,” U.S. Circuit Judge Frank Easterbrook said in a five-page opinion. “It is enough for us to hold 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.”
Miller asserts that its list of ingredients differs from what its beers actually contain.
But “many people infer from a list of a finished product’s ‘ingredients’ that things on the list are in the finished product. If Anheuser-Busch has led consumers to believe this, it is hard to see why those statements can be enjoined,” said Easterbrook, a Reagan appointee.
The judge added: “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.”
Miller claims that the use of corn syrup in its brewing process improves the flavor of its beers — that is for consumers to decide, the court said.
“The opinion was obviously mostly written before argument, and the court wanted to see if there was some reason it was wrong. It found none,” said Risch, the Villanova professor.
U.S. Circuit Judges David Hamilton, an Obama appointee, and Amy St. Eve, a Trump appointee, joined Easterbrook on the unanimous panel.