In a bit of a head-scratcher, a federal judge in Wisconsin has ordered Anheuser-Busch to remove factually-correct language from Bud Light packaging–namely, that Bud Light contains “No Corn Syrup.”
The preliminary injunction is the latest installment of the “beer wars,” which have been brewing since last year’s Super Bowl, when the Budweiser-making behemoth aired a commercial which, in no uncertain terms, accused rival MillerCoors of brewing Miller Lite and Coors Light with corn syrup. The horror!
For those who might not know, ordinary corn syrup is a sweetening agent which consists of glucose suspended in water. High fructose corn syrup, on the other hand, is created by adding enzymes to ordinary corn syrup to produce fructose. Fructose is sweeter than glucose, and allows manufacturers to pack the same sweetness into its products with less volume.
MillerCoors promptly filed suit, pointing out that beer requires fermentable sugars, and those sugars need to come from somewhere. Corn syrup is not actually present in the finished Miller Lite and Coors Light beers. Rather, it is used merely as a fermentation aid, providing sugars that will get devoured by yeast, transforming into alcohol and CO2– two important ingredients when you’re making beer. Bud Light, by contrast, gets its fermentable sugars from rice, not corn syrup. Ergo, Bud Light can accurately say it is not brewed with corn syrup. MillerCoors argues that, in the current popular climate, it would have been better off accused of clubbing baby seals for sport.
The gist of Miller’s argument is that by highlighting Miller’s use of corn syrup as a fermentation aid, Anheuser-Busch is falsely and knowingly conflating ordinary corn syrup (used by many brewers, including Anheuser-Busch in other beers), with high fructose corn syrup in an effort to piggyback off the current popular aversion to high fructose corn syrup. Miller alleges that Anheuser reportedly conducted focus-group testing, which revealed that the average consumer does not understand the difference between the two products. The advertisement, Miller argues, was therefore designed to create a false impression that Miller uses high fructose corn syrup in Miller Lite and Coors Light.
U.S. District Court Judge William M. Conley agreed. First, he noted that Bud Light, Miller Lite, and Coors Light collectively account for nearly 100% of the light beer market in the United States. Second, he acknowledged that given Anheuser’s Super Bowl ad campaign was generally “misleading” when considered in light of all of the factors above. Third, the ad campaign was incredibly well-publicized, and its launch during the Super Bowl projected it to the largest television audience on planet Earth. With such a “limited” market for light beer, he wrote, the average consumer, who probably heard about the ad campaign, could plausibly look at a pack of Bud Light, see the “No Corn Syrup” tagline, and reasonably assume that Miller Lite and Coors Light, its principal competitors, do contain corn syrup, which is false.
Judge Conley’s decision enlarged an earlier preliminary injunction, which barred Anheuser-Busch from saying or implying that Miller Lite and Coors Light actually “contained” corn syrup, but allowed Anheuser to continue saying the rivals were “made with” or “brewed with” the sweetener. These provisions are still in effect.