Continuing "Corntroversy": Comparative Advertising or Cause for Defamation?

May 24, 2019

Pepperdine Student Brooke Gundersen

Advertising has become a dreaded word - just as taboo as He-Who-Shall-Not-Be-Named in the Harry Potter series or the name Musselman in the Nevada basketball community. The second a person recognizes something as an ad, they tune out. This holds true all year, except for one very special day when the ads are more anticipated than the game itself. Yes, that is right. Super Bowl Sunday is the one day a year when all attention is directed towards the creativity that brands like Doritos, M&M's, and Pepsi put forth in their ads. February 3, 2019 marked a turning point in Super Bowl history: perhaps one of the most direct, aggressive, and thoroughly shocking ads aired on the screens of over 98.2 million people. In this commercial, Bud Light specifically called out major competitors, Coors Light and Miller Lite (both a part of MillerCoors), for using corn syrup in their brewing process. This advertisement shocked viewers and was so controversial, it created potential for a lawsuit. Does MillerCoors have cause for a defamation lawsuit? Do the corn farmers of America? MillerCoors does have cause for a defamation lawsuit (corn fanners do not), and this paper will prove so through an analysis of the Bud Light advertisement in context of the various legal principles that are applicable to this situation.

Deemed the "Corntrorversy," Bud Light airedGame of Thronesinspired advertisements that featured various characters from die show wheeling around a giant barrel of corn syrup to the various beer castles. The troop visited the Miller Lite and the Coors Castles, asking them if they were missing their most recent shipment of corn syrup because it was mistakenly delivered to Bud Light, who does not brew with it. The ad ends with Bud Light's claim that their beer is brewed with rice instead of corn syrup. But this messaging did not stop with this singlecommercial; it seems that this has become a campaign (seemingly a new tagline) and is further emphasized via print and out of home media as well as on the company's social media accounts.

So what does it mean for Bud Light to be 100% free from corn syrup? Not much, really, especially considering that most of their other products use high fructose corn syrup. MillerCoors does use corn syrup, because it both cleanly and easily converts to alcohol in the fermentation process and gives the beer a neutral flavor. They do not, however, use high fructose corn syrup. Anheuser-Busch does not use corn syrup in the brewing of Bud Light, but uses rice instead. In their public statement of defense, Bud Light claims that the commercials are meant to serve a dual purpose: 1) point out a key difference between Bud Light and competitors and 2) be completely transparent with their consumers. In a way, the commercials accomplish these two things. They are transparent about the ingredients they use in their brewing process and how this differentiates them from competitors. The issue does not lie in their transparency with their own process but rather in their defamatory claims about MillerCoors. Normally, comparative advertising is protected because it is opinion-based and can be passed as puffery. This case is different because it is about MillerCoors' ingredients and brewing process (fact), not Bud Light's opinions, in which case it isnotprotected by the First Amendment.

The 'Corntroversy' of Corn Syrup

To understand this controversy, it is important to understand the role of corn syrup in the brewing process. Yeast produces alcohol. All brewers start their processes with yeast because of its quick consumption and conversion of other ingredients, specifically of glucose. Yeast converts glucose into ethanol only in anaerobic environments (those without oxygen). In a very complicated process (glucose+ 2ADP + 2 phosphateà2 ethanol + 2CO2+ 2ATP), the glucose stays inside the yeast's cells and is converted to acetaldehyde, which then turns into ethanol(alcohol). Basically, yeast turns glucose into alcohol in a process called fermentation, which is why it is so effective in making beer. Bud Light's argument, that their beer has 100% less corn syrup, is redundant because the corn syrup never makes it to the final product: the refined sugars are converted during the fermentation process. It does not matter if beer is brewed with corn syrup (or rice) because it is transformed during this process. The corn syrup is not present in the product that reaches the shelves.

The first element of defamation is that a false statement of fact has to have been made. The effectiveness of Bud Light's ad depends on the common consumer's ignorance of the difference between corn syrup and high fructose corn syrup, the latter of which is the corn syrup to be wary of. Through this scare-tactic advertising, Bud Light is essentially hoping that the simple use of the term "corn syrup" will create alarm within the minds of the consumers and scare them into turning away from MillerCoors. With new health studies being published about the hazards of (high fructose) corn syrup, customers are rejecting any product even remotely associated with it, just as they did in the 1970s when newspapers were claiming the beer was made with deadly chemicals. This was not true, but the public was so rattled by all of the new information and studies that they responded to the claims. Anheuser-Busch is doing the same thing almost 50 years later and is depending on the public to make the connection between (high fructose) corn syrup and health problems. Thus, they create unrest and confusion because Bud Light's messaging about the use of corn syrup in the brewing process implies that MillerCoors is creating products that are unhealthy and deadly.

There are two claims that have been made by Bud Light, one of which is technically false. In their commercials, Bud Light claims that MillerCoors brews their beer with corn syrup;but in a picture ad meant for social media, they list the ingredients of Miller Lite, Coors Light, and Bud Light, directly implying that the corn syrup is an ingredient in the final product. As has already been outlined, the latter claim is false. So then arises the question of whether MillerCoors being brewed with "corn syrup" (claimed in the commercial) is enough to qualify as a false statement of fact, because it is technically true. Bud Light did not necessarily make a false statement of fact within the commercial: MillerCoorsdoesbrew with corn syrup. The falsity lies not within this claim, but in the underlying implication that the corn syrup makes it into the final product, which is reinforced in other print ads. Previous laws have said that words and sentences may literally and technically be true but may be framed in a such a setting as to mislead or deceive. This principle, then, would hold true in this case. It is a fact that MillerCoors brews with corn syrup, but the way it is framed is intended to mislead or scare the consumer. Should a defamation lawsuit arise, MillerCoors could argue that the use of "corn syrup" within context emits the falsity. On the other hand, Anheuser-Busch could argue that it can be proven that MillerCoorsdoesuse corn syrup in their brewing process and they did not intend to mislead the consumers but display themselves in a transparent way. If the jury sided with Anheuser-Busch, the defamation case would crumble and they would win.

The second element of defamation deals with whether the false statement of fact was communicated to a third party. The commercial was indeed communicated to the public, 98.2 million people to be more exact. Reactions to the advertisement were mixed, but most viewers could not help but pick up on the not-so-subtle comparative advertising. Along with the main beer companies, corn farmers - a key part of beer production in America - have reacted to the claims. The National Corn Growers Association even tweeted about their disappointment in thecompany. Many people took to Twitter to express their opinions, saying they were heartbroken and shocked that Bud Light would create such an ad. On the other hand, some users tweeted about their admiration for their new stance and creativity with the ads. Needless to say, the ad sparked interest from both sides.

The next element of defamation is that the false statement was of and concerning the plaintiff.Comparative ads are those that directly, or indirectly, compare different brands based on features of the products like price, or in this case, ingredients. Normally, comparative advertising does not directly call out the name of the competitor, but rather indirectly refers to them as "competitor" or the "other guys." David Ogilvy, legendary in the advertising world, was against this type of advertising. Comparative ads create awareness for the competitor by mentioning their name, and to go even further, they also tend to do the sponsor a disservice. People see the competitor as the hero of the ad and the sponsor as the villain—a phenomenon Bud Light should have been more conscientious of. The key phrase within this definition is "directly, or indirectly," primarily because it does not necessarily have to call out the competitor by name to be considered comparative. If this were the case, it would be rather difficult to prove that the statement was of and concerning MillerCoors. This does not hold true, however, because Bud Light directly refers to MillerCoors by name. It is very clear, then, that the statement is of and concerning the plaintiff. It would be hard to argue in favor of Bud Light here because of this directness.

Then comes the harm to reputation element, in which MillerCoors would have to prove some damage to their reputation if they decided to sue for defamation. Actual harm to reputation is not necessary if it injures one in trade, business, or office. It is within logical reasoning that theclaimharmed the reputation of MillerCoors, and subsequently, Bud Light but that is not to be argued here. Suggesting that the company brews with corn syrup could only be interpreted as a negative claim meant to harm the company and promote the interests of Anheuser-Busch. MillerCoors could further meet this element if they show that their sales declined after the airing of this ad. It could potentially be difficult to distinguish if the sales went down because of the ad or if they naturally declined by way of supply and demand, but any logical person would be able to deduce the cause of the decline if it was substantial (statistically significant) enough. If their sales dropped after the release of the ad and they could prove it, MillerCoors would prove injury in trade or business and not have to prove actual harm to reputation. It must be mentioned that Anheuser-Busch would be able to argue that loss of sales is not directly caused by the commercial, but rather that they are correlated. It is always difficult to prove causality and Anheuser-Busch could sway the argument in their favor by arguing from this perspective.

The last element, fault, would normally be difficult to prove, considering the protections that the Supreme Court has instilled to ensure free speech. Since MillerCoors is a public official within this context, they would have to prove actual malice rather than negligence, which is reserved for private cases. Famous Supreme Court caseNew York Times v. Sullivanresulted in the establishment of actual malice, where the public official has to prove that the publication was made with knowledge of, or reckless disregard for, the falsity. In this case, it is very clear to determine that reckless disregard for the falsity will not come into play. Anheuser-Busch carefully researched the brewing process of MillerCoors before releasing these advertisements to make sure the claims were valid. Then would come the tricky process of proving actual malice, where we now turn to Anheuser-Busch's defense: truth. For their defense to prevail, the claimsmadewould have to be proven true in all essential points, in which case they would fail. It is true that MillerCoors brews with corn syrup, but it is not true that Bud Light contains 100% less corn syrup than MillerCoors. As has already been established, the corn syrup does not make it into the final product, so Bud Light's claims are false. MillerCoors could then argue that they had knowledge of this falsity (because what beer company does not know how corn syrup is used?) but published it anyway. Thus, MillerCoors proves actual malice.

The purpose of Bud Light's ad was to sell beer, but it seems as though this comes in second to an ulterior motive: defaming the reputation of MillerCoors. The ad, under the guise of theGame of Thronescharacters, was created with the intent of turning the consumers away from MillerCoors. This comparative advertising went beyond comparative. It was aggressive and malicious, designed specifically to scare the public and min the reputation of MillerCoors. They knew that common consumers would not know the difference between the corn syrups, and they knew that these ads were going to scare customers from MillerCoors straight into their hands. This commercial is riddled with malicious intent more so than it is to sell beer. Again, to look at the other side, Anheuser-Busch could argue that comparative advertising is legal, and that the MillerCoors process is technically public knowledge, thus proving that it was not a false statement and actual malice is not relevant.

On a more grass-roots level, there has been an upsurge of anger seen from the corn farmers around the country, which could mean another potential lawsuit. It is easy to both address and dismiss this worry because of the ruling withinNeimann Marcus v. Lait.When a group is so large that the individual members cannot be named, then they cannot file a lawsuit. If the National Corn Growers Association (NCGA) consisted solely of six or seven corn growers,then they could sue because it would be easy to name each member. But the fact still stands that there are hundreds of corn growers in America, and their group is too large to sue for defamation.

Finally, the last point to mention deals with the ethics of advertising. Within advertising, there are standards to make advertising as honest as can be. In fact, under the Constitution, truthful commercial information is as important as political speech. Advertising shapes the way that the public thinks about issues and products and should aim towards contributing to the general welfare of society. It displays core values of a company, so being authentic is crucial, especially in a world so saturated with brand messages and ads. Any person who studies or works within advertising knows that false advertising is both illegal (Lanham Act) and unethical. The Bud Light ads may not have been illegal, but at the very least, it was unethical. I am a firm believer that honesty is the best policy; honest advertising allows the consumers to connect more authentically with brands. It builds trust. By playing dirty, brands only tarnish their reputations.

The Corntroversy will not soon be forgotten, especially since MillerCoors filed suit against Anheuser-Busch on March 21, 2019. (Called it!) They could perhaps, and probably will, refer to the Lanham Act in their arguments. This act deals with trademarks and unfair competition—in short, a company cannot mislead the consumer. What will come of this lawsuit, nobody can foresee, I suppose it depends on who can hire the best lawyers. It is necessary to remember, however, that if Bud Light had simply followed advertising standards, this mess could have been avoided. Their idea was good – itis commendable that they were aiming to give customers transparency and authenticity with their ingredients. It is an initiative all companies should follow. The issue, however, comes with how they incorporated MillerCoors. They wouldhave had great advertisements if they had merely left MillerCoors out of it. The lesson to be learned, whether in advertisements or in real life, is to only focus on ourselves and what our strengths are. The minute we start to drag others down in an attempt to make ourselves look better, we cross a line. We need to treat people with kindness and be proudly, fiercely, authentically ourselves. After all, it is the only way to have meaningful, true relationships. And please, never, ever underestimate the power of a good friends and cold beer, regardless of its brewer.

Brooke Gundersen is a student in Jon Pfeiffer’s Media Law class at Pepperdine University. The class covers copyright and social media. Brooke is an Advertising and Creative Writing major.

Pfeiffer Law Corp is an entertainment law firm based in Santa Monica, California.

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