Defending Against the Blitz: Examining the Legal Issues Surrounding Super Bowl Ads | Venable LLP

As the rest of us gear up for the Super Bowl by buying avocados to make guacamole, installing new big-screen TVs, and donning Ram/Bengal-themed face paint, some corners of businesses Americans are gearing up for the biggest advertising day of the year.

In 2021, businesses spent around $485 million on ad placements during the big game, and the average cost of a 30-second commercial slot was around $5.6 million. With the stakes so high, plus the intensive scrutiny of “standards and practices” used by television networks, one would assume that whatever makes the cut is beyond reproach. (The review board won’t even let advertisers use “Super Bowl” because it’s a trademark, which is why you often hear “the big game” in ads.)

However, the following examples of legal challenges to your favorite Super Bowl ads demonstrate that the world of advertising law can be difficult to navigate, and companies that advertise simply cannot reduce their risk of litigation to zero. .

Competitive lawsuits under the Lanham Act

In the spirit of the great game, our first example is the story of two contestants. In 2019, Anheuser-Busch ran a series of ads comparing Bud Light to MillerCoors products (Miller Lite and Coors Lite). The difference? Bud Light is made with “100% less corn syrup than Miller Lite”. Needless to say, MillerCoors did not like this comparison and sued Anheuser-Busch for false advertising under Lanham law.

Interestingly, Anheuser-Busch’s statements were factually accurate. MillerCoors used corn syrup as a fermentation aid during the brewing process, although there was none in the final product. Nevertheless, under Lanham law, a company can still be held liable if a truthful statement is likely to mislead or confuse consumers. During the litigation, MillerCoors presented evidence that, after viewing Bud Light advertisements, some customers believed that Miller Lite and Coors Light contained corn syrup. The district court agreed with MillerCoors that the advertisements were likely to mislead consumers and issued a preliminary injunction prohibiting Anheuser-Busch from using the term “corn syrup” in any advertisement without further context.

The Seventh Circuit eventually lifted the injunction nearly a year later, finding the ad was not misleading, as Miller Lite and Coors Light listed corn syrup as an ingredient on their bottles. After on-the-ground review (of advertisements), even if a statement in an advertisement is true, your business must consider the broader context and possible consumer perception to avoid prosecution under the Lanham Act for false advertising .

National Advertising Division (NAD) Challenges

Competitors can also run the Haste Offense with a faster review of an advertisement via a NAD challenge. One of T-Mobile’s top rivals did just that in response to a T-Mobile ad that aired during last year’s Super Bowl. In the ad, various celebrities (including Tom Brady and Rob Gronkowski in one and Gwen Stefani and Adam Levine in the other) are seen talking on “irregular networks”. In every ad, there’s a disconnect between what Brady and Stefani said and what Gronkowski and Levine heard, leading to humorous results. At the end, the ad vaguely references other networks and highlights the benefits of T-Mobile’s 5G network for “big decisions.”

As a result, the aforementioned network competitor challenged the ads before BBB National Programs’ NAD, which found that the ads conveyed the message that T-Mobile provides better 5G service for video calls than its competitors, and consumers making calls on a competitor’s service were likely to experience inconsistent service. While T-Mobile argued that this message was supported by its 5G coverage and 5G speed test results, NAD disagreed and recommended that the ads be discontinued, and T-Mobile agreed. .

Notably, the NAD recommendation is just that – a recommendation. As an independent, nonprofit organization, BBB National Programs is not a government entity or affiliated with any government agency. Therefore, T-Mobile’s participation in the review process was voluntary, as was its choice to comply with NAD’s recommendation and remove the advertisements.

However, if an advertiser refuses to participate in the review or to comply with NAD’s recommendations, NAD will refer the matter to the appropriate regulatory body (usually the FTC). This goes to show that even if a competitor (or consumer) doesn’t sue, there can still be consequences for ads that don’t toe the line.

Even if you’re not creating Super Bowl ads, there’s still a lot to consider when marketing your products to consumers.

About Shelley Hales

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