Beer is an increasingly competitive industry, with 9,247 breweries in operation at the end of 2021 alone, a number that quadrupled in a decade, according to the Brewer’s Association. As the number of breweries grows, so do the applications and awards for intellectual property rights–and disputes arising from advertising claims.
The Brew-haha
Anheuser-Busch filed a challenge using the NAD Fast Track SWIFT process, claiming that campaigns by Molson Coors, most recently during a televised football game, unfairly implied that light beers taste like water. The most recent Molson Coors ad showed a cyclist celebrating after a challenging ride by pouring a can over his head, in a fashion typically reserved for water. The tagline was “Light beer shouldn’t taste like water. It should taste like beer.” The unbranded packaging on the light beer in the ad was in a blue color that could potentially be associated with the Bud Light can. Another ad in this campaign showed a team of athletes pouring what was packaged as “extremely light beer” over their heads, with the same tagline.
Puffery in Sensory Claims
Molson Coors argued that the “light beer tasting like water” claims used in this campaign were puffery, which do not require substantiation. Puffery claims are impossible to prove objectively. However, when ads contain other context that can be read as drawing an unfair comparison, the NAD and other regulatory bodies can blow the whistle on the play. The NAD found that, given the context of this claim, the representations created expectations in consumers that could be measured objectively.
What Can and Cannot Be Measured
In instances where a party, whether in a NAD proceeding, federal court, or other regulatory body, claims that their claims are puffery, they are referring to a type of claim that cannot be objectively measured. Standalone claims like “world’s best coffee” or “top brand in the universe” would not be measurable. However, the context of ads has been important in recent NAD decisions. If you are making a claim using a comparison that could be read as disparaging competitors, even if it’s just the color of the competitor’s packaging, you will need research to back it up.
According to the NAD decision:
The Challenger argued that the videos falsely disparage Michelob Ultra and other light beers by claiming that consumers find them to be tasteless or having a taste similar to water. The Challenger argued that the videos go even further than false disparagement into the realm of ash canning or false denigration by communicating that competing light beers are of little or no value to drink and only good for pouring out of the can to shower oneself, as with water.
MMR Can Measure That
In an advertising dispute arising from a claim of this sort, a survey might be able to substantiate the claim. A sensory claim substantiation survey could be conducted to determine which of a group of light beers tastes the best. A sensory study could also be used to support the claim that the advertised light beer tastes less like water than competitor beers.
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