Briefing done in MillerCoors – Anheuser appeal and oral argument set. Bonus: We’ve got the briefs for you. And in the ongoing trial court case – Anheuser loses right to use “no corn syrup” packaging.
Our last update on the ongoing corn syrup saga was that MillerCoors had appealed the district court’s decision that granted it an injunction for most of the corn syrup advertising but failed to stop the use of the “made with” “brewed with” and “use” language in Anheuser Busch’s corn syrup ads.
Anheuser has now filed its response brief in the appeal (read it here) and MillerCoors has filed its reply (read it here).
Briefly (yes, I went there), Anheuser’s response is that the district court was correct and that MillerCoors’ beers are “made with” brewed with” and “use” corn syrup. So the questions are really:
- Can MillerCoors use a consumer survey in a Lanham Act case to redefine the plain meaning of “made with” brewed with” and “use” where none of those words mean “in the final product.”
- Should the 7th Circuit adopt a narrow presumption of deception for false-advertising cases allowing plaintiff to show that defendant acted with the intent to deceive.
At bottom, MillerCoors’s position is that Bud Light should be prevented from advertising accurate information about MillerCoors’s use of corn syrup in the brewing of Miller Lite and Coors Light simply because MillerCoors prefers not to highlight its use of that ingredient to consumers. That stance, however, turns the Lanham Act on its head. The Lanham Act protects against advertising that is false; it is not a tool to suppress truthful information from consumers. The district court’s ruling was correct and should be affirmed.
Interestingly, the Anheuser brief also highlights Miller’s claims that (at least up through March of 2019) sales were gaining/holding on MillerCoors products. This argument is a good one as a lack of harm/damages is a real issues to have to overcome.
Argument is set for September 23, at 9:30 in Room 2721 over at the Dirksen Federal Courthouse in Chicago if you want to go.
In the district court case, the Court today entered an order enjoining Anheuser-Busch from using the “no corn syrup” language and icon on its packaging “after it exhausts the challenged packaging on hand as of June 6, 2019, or on March 2, 2020 … whichever occurs first.” You can read the full order here. So grab these, they’ll be collectors’ items soon:
