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In Episode 36 of the “Law & Business” Podcast, Anthony and producer Marc Sterne talk about the MillerCoors lawsuit against AB InBev over its “corn syrup” campaign, which started during the Super Bowl. This episode (minisode? miniwebisode?) was recorded at Chatter in Washington, D.C. Thank you, Marc for recording and helping with all the episodes at Chatter.

MillerCoors is suing Anheuser Busch InBev, seeking injunctive and other relief for what it calls “a false and misleading advertising campaign targeting Miller Lite and Coors Light.”

It’s the latest step in a brewing marketing feud that began during the Super Bowl. Bud Light, in three spots that aired during the game, attacked MillerCoors’ Coors Light and Miller Lite brands by name, noting that those brews use corn syrup.

MillerCoors, in its complaint filed in federal court in Wisconsin, said the ads are meant to deceive beer drinkers into thinking its beers contain corn syrup and high-fructose corn syrup in order to boost sales of Bud Light. Plus, it says the ads dilute its trademarks, which would be in violation of the Lanham Act. MillerCoors seeks a halt to the “false and misleading” ad claims and “willful trademark dilution,” saying that the ads have diluted the goodwill associated with its brands and have damaged the reputation of the brands.

Anthony and Marc discuss the complaint, the false advertising claims, the possible harms to the MillerCoors trademark, and defenses for AB.

“AB’s purported rationale for this campaign, ‘transparency,’ is a classic example of corporate double-speak,” says AB’s complaint.

A predicted defense for AB is going be the plain meaning of the words in the advertisement. AB is saying that its Bud Light is not brewed with corn syrup and that MillerCoors’ Coors Light is. Predictably, AB will just stick with the plain meaning of those words and that consumers should only hear the words in their denotations, and not their connotations, which is what MillerCoors’ lawsuit focuses on.

Smaller businesses need to understand that advertising and the use of a competitor’s trademark do come with risk. Managing the risk is necessary and understanding the limits of what is not a deceptive and not a misleading ad are necessary also.

Here is a lightly-edited transcript of the podcast episode:

Anthony Verna:
Welcome to this mini episode of the Law and Business podcast. We’re still recording from Chatter in DC. How you doing, Marc?

Marc Sterne:
I’m doing great. Technically, is this not a mini webisode?

Anthony Verna:
Oh, I see. Okay.

Marc Sterne:
I’m just trying to stay hip man.

Anthony Verna:
I know, I know. Marc, thank you for recording with us. And I know we’ve got a question from the audience.

Marc Sterne:
Yes, we do have a question regarding the lawsuit involving Budweiser, Miller Coors and corn syrup.

Anthony Verna:
Let’s talk about this particular suit for a second because it’s Miller Coors versus Anheuser Busch filed in federal court in Wisconsin and yes, it’s about the no corn syrup ads. So, went from dilly dilly and do you have an impression of that one?

Marc Sterne:
I don’t have it. I do like the ads. I don’t have an impression for the dilly dilly. I hated them to start. And then they grew on me and I was like…

Anthony Verna:
No, I could easily see that because it’s a very, it’s a well-crafted campaign that, of course, has now mutated into a second campaign. And Anheuser Busch even did some really fun things with that ad campaign. Like when there was a trademark infringer on a dilly dilly, Anheuser Busch actually sent a guy in a knight’s outfit and he even opened a scroll and he read aloud the cease and desist letter.

Marc Sterne:
And that’s how you deal with issues.

Anthony Verna:
It was absolutely fantastic. And that turned into a viral video, so you could even find that online, but it’s now mutated from this dilly dilly, but keeping the same characters and it started during the super bowl. And I’m seeing not just the commercials, but also online.


There are a lot of videos on social media as well as billboards. And so other traditional media where these characters now say that that Bud Light is not brewed with corn syrup. And, Coors Light is brewed with corn syrup.

Marc Sterne:
So, in the ads, you’ll see it like the people who come to the castle and say, yes, your majesty, your shipment of corn syrup is here and they’re like, no, that’s not for us. Right. And try Coors. No, they’re filled with theirs. Oh, try Miller. You know, and so yeah, it’s basically saying we don’t use this crap, but these guys do.

Anthony Verna:
Yes. So that’s what the lawsuit is. So, effectively this is a lawsuit for partially false advertising, partially  what we call a false designation of origin and effectively hurting the reputation of a competitor’s trademark.

Marc Sterne:
And that doesn’t fall in the area of slander or anything like that?

Anthony Verna:
Correct. It wouldn’t be a defamation or it wouldn’t be a slander or libel issue because we’re dealing with the harm to the actual trademark. Okay. But a lot of what we’re going to say looks like that as well. So in this particular instance, Miller Coors is alleging that some particular facts, one that nobody is actually drinking corn syrup when they’re drinking a Coors Light, even though it is brewed with corn syrup. Two,  corn syrup is something that is used in other Anheuser Busch beers. And the complaint lists a whole lot of them. Three.

Marc Sterne:
In other words, you’re accusing us of this and yet you appear to be doing it yourselves, correct?

Anthony Verna:
Correct.

Marc Sterne:
Pot calling the kettle black.

Anthony Verna:
Correct. So, while there is no corn syrup in Bud Light, I think that Budweiser itself has brews with it.


Yes. I believe that Stella Artois brews with it as well. So, there are other beers that do brew with corn syrup.

Marc Sterne:
I think that’s pronounced teller octos.  Which was another great ad for the Super Bowl. Sorry.

Anthony Verna:
That’s okay. So, there are beers that are doing it and two the only way that a beer is brewed is with a carbohydrate of some particular aspect. And in this particular case, yes, Bud Light uses a rice, but again, other beers use corn syrup. And that’s not particularly odd. It’s not particularly weird. And I think you said it, but using the word crap, a lot of people think that corn syrup is high fructose corn syrup or is short for high fructose corn syrup. And in fact, high fructose corn syrup and corn syrup are two completely different animals. Yes. They’re related because high fructose corn syrup means that it’s just a corn syrup with extra sugars in it, and a lot of food is made from that.

Marc Sterne:
A lot of food. Yes. So, as we’re finding out a lot of food.

Anthony Verna:
And as somebody who has been following the Keto diet since September and…

Marc Sterne:
Good for you.

Anthony Verna:
Thank you, sir, and has lost weight by the way.

Marc Sterne:
You look great, by the way.  You look great.

Anthony Verna:
Oh, thank you. I appreciate that. I can tell you what a reduction in carbs has done for my body shape, so, okay. I get all of this. So, these are the factual claims that Miller Coors is making in its complaint and all of these facts lead up to a confusion or deception in this particular advertising campaign. Anheuser Busch has not filed an answer yet. Answers not ready. They probably will be filed by the time that we post this episode.


But if I’m looking at this from the Anheuser Busch standpoint, they’re going to say no, our words are technically true. Absolutely, your honor. They don’t say that you’re drinking corn syrup. They say that there is no corn syrup in Bud Light. Okay. They don’t say that if you pick up a Coors Light that you are drinking corn syrup. It’s just made with it. Yes. A Bud Light is not going to be talking about the other beers that Anheuser Busch brews in its campaign. So, there’s no mention of that. All of these other implications that Miller Coors is making… Basically, the defense is going to be, we’re not saying any of that. If you look at our words and only our words, they are completely true.

Marc Sterne:
Okay. I get all that. Can I get for a second?

Anthony Verna:
You’re allowed it.

Marc Sterne:
Is the judge allowed to say we get the words technically are true, but the intent and the impression that you’re giving is not what we would call accurate. Are they a little allowable for that kind of discretion or a gray area?

Anthony Verna:
I would say. I would say yes. One is probably the best gray area in advertising laws is what we call puffery and puffery is probably not going to apply here. But puffery is like…

Marc Sterne:
 an over inflation of a product’s like what it does.

Anthony Verna:
Correct. So, this is the best beer you’ve ever tasted. How would you ever be able to measure that?

Marc Sterne:
Right. You know I’m looking to sue somebody that sold me sea monkeys in the back of a comic book cause they never built a great civilization like they said they were going to.

Anthony Verna:
There’s probably the best beer in the world.

That’s what Carling, I believe.

Marc Sterne:
Is that what they’re claiming?

Anthony Verna:
That is what their slogan is, yes. So, part of the issues, how do you measure these kinds of things, right? You can’t, so how do you measure the effect of these words on what a consumer looks like? Well, you’ve got to take into effect what the average consumer thinks. And I think where Miller Coors is going to be hammering this particular case is in the angle of what do consumers perceive when they hear these ads and if you’re the plaintiff and any kind of a deceptive advertising lawsuit, this is what you’re going to look at. You’re going to say, well, I get that your words are technically true. But the big issue here is the fact that a lot of people do think that just corn syrup meant high fructose corn syrup.

Marc Sterne:
Yes. I’m one of those people. And I know I’ve heard both terms, but I didn’t differentiate as like, Oh, yeah, it must be the same thing.

Anthony Verna:
No. So, and it’s not. So, I think a lot of people are going to, I think, I think a judge would have to look at that. But the other issue is, is probably intent as well. Are there going to be any interviews out there with any marketing CMOs or other marketing heads in a company that discussed the advertisement a little more. Like if an interview out there where somebody says, yeah, we did this because we know the average consumer doesn’t know the difference between the two. Well, you’ve just dug yourself a hole that’s going to be very difficult to get out of because of that perception.


Advertising lawsuits are about what is deceptive and misleading. And in a case such as this one, you’ve got to look at the deceptiveness, what is misleading, what is left out. And a lot of that goes to then back to the creation of the advertisement. And when you work with a company that’s creating an advertisement, is what is said leaving anything out? And, they’re gonna sit there, they’re going to sit back and they’re going to say no, we left nothing out that says no corn syrup, , Bud Light’s not brewed with corn syrup. This one is brewed with corn syrup. That’s what our campaign says. And that’s all that our campaign says.

Marc Sterne:
Two things come to mind. Okay. First of all, there were hours and hours of discussion more about hours. I mean hundreds of days of conversation about like with legal teams.

You know, all this stuff would be like, yes, can we say this? And so, they’ve done the math on this and they’ve been like, this is going to be fine. I mean, they must have done that and said we’re going to be okay with this.

Anthony Verna:
I think absolutely correct that even if there were I lawsuit, it’s going to cost us X to defend the lawsuit and we’re still going to make Y money because hungering it out because it’s a great campaign. Yes. Right. Absolutely correct. And all right. And like I said, this is like a mutation of the campaign. And if you look at the complaint, it blatantly states the campaign started at the Super Bowl. Well, it used the same characters from a previous campaign as well. So, it already has this face to it that is that people like.

And people have grown to like as well. So even if there’s a monetary issue here where Anheuser Busch has to pay Miller Coors something in some kind of restitution for harming their particular value or stating stuff that is deceptive and misleading in an advertisement. They’ve probably calculated that to still…

Marc Sterne:
Yeah, they must’ve, the bean counters have to dope that out and be like if we do this, we go this route. This is going to be, the positives is going to be, you know, the negatives and all that kind of stuff. It’s amazing that they can calculate that accurately, but they have to, to go down this kind of campaign.

Anthony Verna:
Absolutely. Correct. As a matter of fact, a story from a Dannon, the yogurt company, they came out with Dan Active, which is this probiotic yogurt.


They had the science, to talk about which probiotics they have in the yogurt and what it does and why it’s not different. Other probiotics. And because those do different things to your digestive system. They had all the science planned out. When the FTC came around to fine them for having advertisements that were deceptive, they basically did a calculation. It would cost X to pay the fine. It will cost Y to defend the lawsuit along with paint Z to change our advertising and labeling. Well the fine plus all the changes in their advertising and labeling were less than the cost of the lawsuit. Even though they probably would have won cause, they had the scientific research there. Right. Well they did the calculation and they paid the fine.

Marc Sterne:
That’s amazing.

Anthony Verna:
I know even though there was technically really nothing wrong with the advertising.

Marc Sterne:
Because it’s just the path of least resistance for them.

Anthony Verna:
Exactly. So the bean counters are there…

Marc Sterne:
And the world runs on bean counters. We know that. The other thing that comes to my mind and because I’m of certain age and I’m going to bring you up to my age and say that we grew up in around the same time cause we pretty much did but, and I don’t remember when this happened, but at some point there was a court ruling that said you could name your competitor in advertisements because when I was a kid, it was never Budweiser versus Coors  or Miller, it was brand X is terrible, but Budweiser’s the greatest beer ever. It was always brand X or this, that or the other. The company wasn’t named specifically. I want to say it happened in the late seventies, early eighties. Cause I remember when they started happening, I’m like, wow, they just called them out.

Anthony Verna:
And I don’t necessarily know that it was one particular court case, but we’ve had this shifting attitude towards trademarks and advertisements and it goes from either comparing products and frankly, if the comparison is truthful, well then you’re not harming the value of somebody else’s trademark. It’s not false advertising. It’s not deceptive advertising. It’s not misleading advertising. So, there is no cause of action there from, from the line of trademarks…

Marc Sterne:
Unless you’re the inferior product. You say that’s just not nice, man.

Anthony Verna:
Well, it might not be nice, but it’s legal. It’s true. Right. So, we have that attitude and just to keep going with what the shifting attitude looks like. Today we have a lot of advertisements with two brands in them. You might remember the Super Bowl ad from a couple of years ago where it was the Chevy ad with the end of the world and the Twinkies were also a part of it.

Marc Sterne::
Oh yeah, yeah, yeah, yeah, yeah.

Anthony Verna:
Okay. Right. Like a lot of ad agencies were not expecting that. And when the ad exec saw that ad, everybody was shocked. Yeah. I mean, because it’s two brands in one commercial and now you’re seeing that that a lot more with two brands in one commercial because there are more efficiencies between two companies that have no, you know, Hostess and Chevrolet have no particular relationship to each other and they able to play that into something.

Marc Sterne:
Is the area where we see that the most, maybe with movies? Like movies are marketing themselves and they’ll attach themselves to an ad, like a car ad or something like that.

Anthony Verna:
But that seems that that’s a little more traditional because sometimes it goes, it works both ways. Like you’ll see the car in the movies, so there’s the product placement in the movie, and then of course then you have the advertisement as well, so that that’s a little more traditional

Marc Sterne:
Yeah, the Twinkies …. It was like, wow, I didn’t see that coming. Right. Wow. Well that’s, this is a fascinating case, Martin.

Anthony Verna:
Thanks for the question.

Marc Sterne:
Yeah. Well, and you’ve, you’ve helped me and I’m hoping all the listeners out there understand it just a little bit better. Thanks man.