Friday, September 06, 2019

even more corn syrup

MillerCoors, LLC v. Anheuser-Busch Cos., No. 19-cv-218-wmc (W.D. Wisc. Sept. 4, 2019)

My discussion of the prior opinion, in which the court preliminarily enjoined AB from suggesting that corn syrup is in Miller Lite and Coors Light, “including emphasizing that corn syrup is not in its Bud Light beer in light of a massive advertising campaign intended to suggest” that ML and CL contain corn syrup. At that time, the court didn’t rule on whether the injunction should cover BL’s packaging, which does not explicitly make comparative statements and instead says “No Corn Syrup.” Here, the court extended its injunction to cover packaging, but AB could sell products using the packaging it had on hand as of June 6, 2019, or until March 2, 2020, whichever occurs first.

For some additional context, perhaps, the court explains that the Bud Light website used to say “We believe you deserve to know what ingredients we put into our beer.” Given the existing injunction, it was changed to: “We believe you deserve to know what ingredients we use to brew our beer.”
old website

more old website

Add caption

new website

Current packaging says “no corn syrup” on the front and side panels, and has “see bottom panel” language on the side panels. The bottom panel states “find out what’s in your beer” (emphasis added) and “learn more at:”  Despite some quibbling by AB, it was pretty clear that Bud Light is displayed at retail locations alongside packages of Miller Lite and Coors Light. The three beers comprise 100% of the national premium light beer market. 

There was also testimony that packaging “is an effective way to drive purchasing decisions because it communicates claims about the product to consumers at the point-of-purchase.” MillerCoors also submitted a Neilsen report indicating that between 32-60% of consumers (varying by age) haven’t yet decided which brand of beer to purchase when they enter a store. AB submitted a 2018 consumer research report on beer and craft beer, finding that packaginging isn’t an important factor in deciding what beer to purchase for 91% of beer purchasers and for 94% of non-craft beer drinkers including drinkers of light beer.

AB also commissioned a survey showing consumers either the Bud Light packaging or a control that had the “no corn syrup” language and icon removed. After reviewing the front image for 10 seconds and the side image for 10 seconds, participants were asked a series of open ended questions, including: “In your own words, what as the main message, if any, on the package you just saw?” Zero respondents in either group mentioned Miller Lite or Coors Light; the majority identified Bud Light’s ingredients as the main message. If respondents correctly identified Bud Light or Budweiser as the brand, they were then asked, “Did the package say or suggest OR did the package not say or suggest something about any other brand or brands of beer?” 28% of the test group and 23% of the control group answered that the packaging did say or suggest something about other brands, but only one respondent in the test group identified Miller Lite or Coors Light in the followup to that question.  When asked what the packaging says or suggests about other brands, 3% of the test respondents who reported receiving any message about other brands of beer mentioned having or using corn syrup.

AB also submitted evidence that its printed but as yet unused packaging for BL containing the “no corn syrup” icon and language had a value of $27 million, which amounts to 69 million packages. AB also has 1.3 million finished cases that have been packaged into secondary containers but that have not yet left A-B’s breweries or warehouses with a value of $5 million.  AB represented that its quality control policy requires secondary packaging be used within 270 days. MillerCoors suggested that stickers could be used instead of destroying the packaging; AB said this would cost $1.10 per package—three times the cost of the packaging itself, or $76 million.  “This strikes the court as an absurdly high estimation,” but the decision didn’t turn on that.

The court applied the pre-eBay presumption that false advertising injuries are presumed to be irreparable, “even if the plaintiff fails to demonstrate a business loss.”

AB argued that its packaging was noncomparative and nonactionable.  Neither of these things are necessarily true (citing a case about highly concentrated markets). “Viewed in context of the full advertising campaign, a reasonable jury could find that the implicit message of the packaging is that other beers contain corn syrup. Moreover, in light of the limited number of beers in the light beer market, with Bud Light, Miller Lite and Coors Light accounting for almost 100% of sales, that same jury could also find a substantial segment of consumers would infer that Bud Light’s principal competitors contain corn syrup, especially after a hundred million dollar television and print campaign misleadingly suggesting the same thing.”  It was reasonable to consider the overall campaign because of the unity of message.

As for defendant’s survey, the court thought that a reasonable jury might accept some of MillerCoors’ criticisms, though it was skeptical of the argument that the survey also should’ve shown them the bottom of the package “at least absent some evidence that a substantial segment of beer purchasers examine the bottom of packaging in deciding which beer to purchase (or at least that retailers regularly stack product to display the bottom of packaging).” But the more intuitive objection, that the survey should’ve been conducted in a retail setting next to Miller Lite and Coors Light packaging, might well convince a jury, and “the limited time (ten seconds per image) respondents had to examine an image of the packaging cuts against the weight of the survey findings.” There were also issues with how the open-ended questions were coded. There was at least “some likelihood of success in proving to a reasonable jury that the Bud Light packaging’s continued use of the now-well-known tag lines ‘no corn syrup’ and ‘find out what is in your beer’ when on display next to Miller Lite and Coors Lite packaging is likely to be misleading, at least viewed in the context of defendant’s full advertising campaign.”

Although previously the court didn’t want to rely on intent, it pointed out that AB spent “tens of millions of dollars on special packaging closely attuned to its larger advertising effort,” which implicitly made AB’s argument that packaging wasn’t material to consumer decisions somewhat less credible.  Moreover, AB’s argument that consumers wouldn’t tolerate stickering on packages contradicted its immateriality argument. And AB’s evidence about lack of reliance on “label / packaging design” focused on the relevance of cosmetic issues such as choice of font, color or layout of the packaging, not on “substantive concerns about nutritional value.” MillerCoors’ contrary evidence was sufficient for a reasonable factfinder to find materiality (and implicitly, it was likely to prevail on this issue).

The court balanced the equities by giving AB the opportunity to use up all its existing packaging as of June 6, 2019, or to use the packaging until March 2, 2020 (270 days from June 6, 2019), whichever occurs first. The court was open to modifying the injunction if MillerCoors could either show that a sticker was feasible or that it was practical to get replacement packaging without interrupting AB’s ability to offer Bud Light for sale.

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