“Ingredient” doesn’t mean “ingredient” and “in” doesn’t mean “in” when stating corn syrup is an “ingredient” “in” Miller Lite and Coors Light.
It should amuse you to no end that the legal pleadings in this case contain treasures citing to the edicts and actions of the Bud Light King:
RESPONSE: … Elements of AB’s campaign do disparage corn syrup; for example, the Bud Light King rejects corn syrup as an ingredient for Bud Light because it is not one of the “finest” ingredients. (Dkt. 14, Reis Decl., ¶¶ 27a, 34).
RESPONSE: … AB’s ads suggest that the syrup discussed by the Bud Light King and other characters is high fructose corn syrup because the Bud Light King rejects it, as it is not one of the “finest” ingredients. (Dkt. 14, Reis Decl., ¶¶ 27a, 34).
Rejected, indeed! For those of you very much hoping that Super Bowl LIV will feature some form of rehash of the corn syrup battle that’s been taking place in Federal Court this past year – there may be a glimmer of hope.
The 7th Circuit has the case back on appeal regarding the injunction(s) and Anheuser has moved for summary judgment, and it appears from the un-redacted portions of the filings that speculation about a killer argument from the Anheuser side – that residual sugars from using corn syrup in the brewing process remain in the disputed Miller Lite and Coors Light beer – is what everyone was trying to stay all hush-hush about and what Anheuser was probably looking to bring to light (promise not to make that a habit) with its motion to unseal.
In addition to that contention, the fact that the MillerCoors website had identified corn syrup as an ingredient in Miller Lite and Coors Light appears to be an issue the brewer will need to do some deeper thinking on, as the current response simply parrots phraseology disputing the meaning of words … ones that those recalling the 7th Circuit’s oral argument will remember the 7th Circuit was not too keen on granting MillerCoors leeway in disputing (sadly, even after that argument their attorneys seem to want to press the issue that ingredient doesn’t mean ingredient and in doesn’t mean in).
Here are those website shots again in case you missed them before:
For those of you wondering how the residual sugar problem and the listing of the ingredients problem will be dealt with… here’s a recurring theme in MillerCoors response to Anheuser’s assertions of fact:
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The term “ingredient” can have multiple meanings depending on use and context. Further, AB has advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding– i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Talk about trying to parse your way out of something…. That phrase, that ingredient (and other words) can have “multiple meanings depending on use and context” appears over 28 times in these responses (and that’s just the unredacted portions). It’s combined in many instances with the continuing statement that “AB has advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding– i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and barley constitute corn syrup.”
The portion of these responses starting in Paragraph 84 dealing with this issue goes one step beyond ludicrous in responding to Anhueser’s assertions that MillerCoors has publicly stated that no corn syrup is present in either Miller Lite or Coors Light where MillerCoors feels a need to neither confirm or deny what is has said, but to object to use of word “in”:
89. Part of MillerCoors’s corporate response to the Bud Light Super Bowl ads was to say that corn syrup is fully fermented in the brewing process and that there are no corn syrup sugars in the Miller Lite or Coors Light finished product. ECF 160, 184:10–14.
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The term “in” can have multiple meanings depending on use and context. Further, AB has advanced an understanding of “corn syrup” that is inconsistent with MillerCoors understanding–i.e., that simple residual sugars allegedly resulting from the fermentation of corn syrup and barley constitute corn syrup. (See Dkt. 162, AB Motion for Leave, at 12-13).
Oddly, this strategy of just objecting to the plain meaning of words appears to have some funny results for MillerCoors – like questioning what “knowledgeable” might mean… for Pete Coors…
97. Peter J. Coors is knowledgeable about the brewing process. ECF 158, 12:22–24 …
RESPONSE: MillerCoors objects to this proposed fact as vague and ambiguous. The term “knowledgeable” can have multiple meanings. MillerCoors does not dispute that Peter J. Coors has knowledge about MillerCoors brewing process. MillerCoors has not designated Peter J. Coors as an expert in this matter.
All that aside, here’s the real rebuttal that a trier of fact may need to determine:
MillerCoors has submitted expert testimony that no corn syrup remains in the final Miller Lite and Coors Light products and that there is no way to determine if the residual sugar is derived from corn syrup or barley. (Dkt. 12, White Decl., ¶ 5(d); Dkt. 13, Manuele Decl., ¶ 11; Dkt. 143, Manuele Expert Rep., ¶¶ 26-34; Dkt. 147, White Expert Rep., ¶¶ 39-42). By way of further response, MillerCoors also disputes that all of the component parts of corn syrup are in the final products. The testing of the final Miller Lite and Coors Light products did not show that they contained glucose. Rather, the amount of glucose was below the level of quantification, so the most that can be said was that glucose was detected but cannot be reliably quantified by this method because there is so little present. (Dkt. 161, Taylor Dep. Tr., at 71:9-20, 148:22-149:18; Dkt. 158, Manuele Dep. Tr., at 321:5-13).
Please let someone make a silk purse out of all this and let’s hope Anheuser and MillerCoors are working overtime on how to have some fun with it during Superbowl LIV.