Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 327, I’m Thomas Smith, that over there is P. Andrew Taurus. I didn’t even say that right. Torah? Torass?
Thomas: Anyway, P. Andrew Torrez, esquire. Moo! How are you doing?
Andrew: Moooo to you too, Thomas! [Laughs]
Thomas: How long do cows live? Are we gonna have a really depressing episode some day? We’ll have to see about that.
Andrew: Well I’m assuming that when it’s time to slaughter P. Andrew Taurus that Dell will send us steaks.
Thomas: Oooh, that got dark in a weird way, but also delicious.
Andrew: Delicious, yeah!
Andrew: Look, it’s a simple question, Thomas, if you were a steak would you eat yourself?
Andrew: I know I sure would!
Thomas: Nice. I also think it should be – not Highlander, there should always be – I think it’s the opposite of Highlander? Anyway, there should always be one P. Andrew Taurus.
Thomas: So if that one goes the way of steak then there should be another one somewhere. It’s like the Dalai Lama, that’s what it’s like.
Thomas: The Dalai Cow is what it’ll be.
Andrew: I was gonna start singing the Circle of Life song from the Lion King, but, you know…
Thomas: Either way.
Andrew: Here we go.
Thomas: Well we have, it’s good we’re on the food topic here, the steak topic, because sort of like that we’ve got a pizza and beer related show and then guns are kinda shoehorned in at the end, which I think is just, it’s an all-America show.
Andrew: There you go.
Thomas: Pizza, beer, and guns. It’s America. We could’ve done this as a Super Bowl show but that’s too long from now so we’re doing it now. [Laughs]
Andrew: That’s exactly right.
Thomas: Can’t wait to talk about Domino’s, terrible pizza, and [Laughs] MillerCoors which – okay, I’m actually not gonna insult MillerCoors, for cheap beer I don’t mind both Miller and Coors. I almost never drink them, but you know, there are worse cheap beers, I’ll say that. And then guns, I’m not a fan, but we’re gonna talk about the Dickey Amendment, which we briefly discussed before but we’ll finally get the full medium dive from P. Andrew Taurus. Okay, here we go!
Pizza – Domino’s App ADA Compliance
Thomas: Alright so what’s this Domino’s Pizza ruling? What’s this about?
Thomas: I don’t remember, I’m sure I’ve heard of this but I can’t place it.
Andrew: So this is an ADA, an Americans with Disabilities Act lawsuit.
Andrew: Ruling out of the 9th Circuit, and it involves Domino’s’ website. At the beginning of the month the Supreme Court in a single one-line as part of its omnibus denials of Cert petitions, just declined to take that case up, so this is the equivalent of the Supreme Court saying “nope.” It does not, as sort of predicate to the explainer, when the Supreme Court allows a Circuit Court opinion to stand, that has no precedential value. That is not the Supreme Court saying “we think that the 9th Circuit is definitely correct,” it is just the Supreme Court saying “we’re not taking the case right now.”
So that’s really, really important, it is one of the first things they teach you in law school is that the Supreme Court can not take cases for lots of reasons and it doesn’t mean that the underlying decision is correct. That being said, I think the underlying decision is correct and I think it’s a good thing that it will be the law in the States in the 9th Circuit at least for now, so I thought it was worth talking about because it’s a really, really important issue. So let’s kinda start at the beginning.
Thomas: I wanna offer a sincere apology, for a second I was thinking Papa Johns because I just hate Papa Johns so much. Domino’s, less bad than that. Just official correction, not horrible, although I never eat it. Okay, there we go.
Andrew: It’s funny, I’m actually gonna cut ahead because when you said terrible pizza, and I would say, you know, mediocre.
Thomas: Mediocre, that’s what I meant. That’s a good correction, I don’t wanna get the emails. Mediocre pizza, not terrible pizza.
Thomas: Official OA position.
Andrew: There is… [Laughs] You can get terrible pizza.
Andrew: Domino’s is mediocre. An important element, this is actually cited in the appellate brief. This is a market report about Domino’s that is (quote) “even if it falls short in flavor-
Andrew: “Where Domino’s has managed to beat both its national rivals and local favorites is convenience. The company has pioneered technology that makes it very easy to get your order and in many eating situations convenience trumps quality.”
Thomas: [Laughs] I love it! That’s an official court document?
Andrew: Yeah, yeah! That is in the document!
Thomas: [Laughs] It’s on the record that Domino’s pizza is quite mediocre, but fast so don’t worry about it, essentially.
Andrew: [Laughs] And the important word in that market analysis is “technology.” I don’t know how many of the commercials that you’ve seen, but you and I watch football on Sunday.
Andrew: Domino’s commercials are every other play in football.
Thomas: Yeah. Are they the ones who have, if you take a picture of any pizza you earn points or something? Is that them?
Andrew: They might.
Thomas: Yeah. Talking about technology, I’m just trying to think. They’ve got an app or something?
Andrew: Yeah, that’s right. They have an app and they have spent the last several years marketing two aspects of the business – other stuff too, but marketing the app and also marketing the carry out of Domino’s.
Andrew: I’ve never done that, I don’t know if you ever have. It seems like it might be a good thing if you’re in college.
Thomas: I think if you’re in college – I was just gonna [Laughs]
Thomas: I think there were a time or two where you’re like what can I eat right now when I’m kinda drunk walking around? Oh, you can actually just carry out a finished pizza instantly. Is that them? Okay, I’m remembering now.
Andrew: Yeah, and it’s cheaper!
Thomas: This is why my memory is not so great of who Domino’s is. [Laughs]
Thomas: It might’ve been a little altered my last time of consumption of Domino’s.
Andrew: [Laughs] And it’s cheaper, right?
Thomas: Oh yeah.
Andrew: So, you know, because they don’t have to deliver it to you so they would rather you carry it out. So keep those two things in mind, because this lawsuit was seeking accommodations under the Americans with Disabilities Act.
Andrew: So first, let’s talk about the Act. The Act is 42 U.S.C. § 12181, et seq. and it protects section 12182, establishes what is tagged as “The General Rule.” The general rule under the ADA is this: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”
This was passed in 1990 by Republican President George H.W. Bush, and you know, it was broadly bipartisanly popular at the time. There was a little bit of pushback from the far libertarian right of “how dare you force business owners!” And, you know, idiots. One of the largest discussions that I remember was talking about “you mean you’re gonna force people to put ramps on their?” And it was like, yeah, as it turns out if you buy a building it’s not a big deal to put up a ramp.
Andrew: I realize that’s an easy sell to your audience and whatever, but it’s an important thing given the weight of history. Certain conservatives fought bitterly against this.
Thomas: Oh, yeah, it was a major culture shift and who knows if it’s all the way shifted, but, yeah.
Thomas: We forget, there’s so many things and I think gay rights is another thing where it’s interesting. In the future a lot of these fights are kinda taken for granted, you know?
Thomas: Then you kinda forget what went into it and it’s like, no, we don’t hate conservatives enough for how anti-gay they’ve been!
Andrew: Yeah! [Laughs] They’ve literally – cultural conservatives have never been on the right side of any issue.
Andrew: That ought to count.
Thomas: And never admitted they’re wrong and never really had to pay any consequences for how horrible they’ve been. Just eventually we move past them and then it’s like [Grumbles] okay.
Thomas: Then they just kinda still exist. But anyway…
Andrew: And because the whole “you’re going to put a ramp on the National Cathedral?” Because of that religious institutions are exempt from the ADA. It’s an incredibly stupid exemption, it shouldn’t be in there.
Thomas: Yeah, because Jesus wouldn’t have wanted somebody with a disability to be able to get into your magical building!
Andrew: [Laughs] Yup.
Thomas: Jesus would’ve been like “nope, sorry! Only fully abled people should be able to worship me, I don’t even! And they’d better have money, by the way, and make sure” … god, sorry.
Andrew: Yup, yeah!
Thomas: It’s the hypocrisy of Christians. Never ceases to amaze me.
Andrew: It’s – we could share versus on leprosy here, but yeah!
Andrew: So religious institutions are exempt. There are three sections of the ADA, the middle section applies to government, so when you’re talking about private industry there are basically, there’s section 1 which doesn’t apply in the Domino’s case that I’m about to describe, but exempts any business that – or I should say, the businesses it includes must be engaged in an industry affecting commerce, they must employ 15 or more full time employees each work day for at least 20 or more calendar weeks over the course of the year. So, in other words, you’ve got to have a fairly robust business to come under the hiring and firing provisions of the ADA. Those provisions require you to accommodate disabled individuals in the workplace. Again, probably a reasonable balance. Look, I get it that you do not want to impose expense requirements on businesses the second you start up.
Andrew: I get that.
Thomas: Seems reasonable.
Andrew: So that’s what section 1 exempts. Section 3 does not have an exemption for size, but imposes as a requirement that you must (quote) “provide goods or services to the public.” So, again, it’s a voluntary choice. Do you have a storefront? If you’re a strictly B to B virtual business you’re not serving the public, this provision doesn’t apply to you, but if you do, you’ve got an ice cream stand, even if it’s a mom and pop ice cream stand, you gotta have a ramp in order to let up – look, you can go to Home Depot – I don’t wanna endorse any particular lumber yard ‘cuz I know one of them is awful but I forget which one it is.
Thomas: Well and we’ll find out Black & Decker owns it all and whatever.
Andrew: [Laughs] Yeah!
Thomas: Time Warner Comcast Disney owns ‘em all or whatever.
Andrew: Yeah, our listeners will probably not be surprised to learn I do very little home improvement projects on my own.
Thomas: I actually do a decent number of them.
Andrew: Oh, yeah?
Andrew: Oh, god, I have no – my spatial relation skills are, like –
Thomas: Oh, I’m not good at it!
Thomas: But I do have – because of my weird upbringing, you know, my dad built our entire house.
Thomas: So I have some of it.
Andrew: I know, I’m a Shoosh listener, so.
Thomas: And I had to re-roof the whole damn thing, I’ll never never get over how much free slave labor I gave my dad for that, but that’s fine, they paid $12 or $13 dollars into my education. Anyway!
Thomas: [Laughs] Point is, I do go to Home Depot from time to time.
Andrew: I do only under protest, so… [Laughs] I’m really not handy. So, anyway, nevertheless even I could stick a ramp down, that’s $12 bucks worth of lumber, so you know, that’s the ADA.
Thomas: I don’t know about that! [Laughs] I’m not trying to contradict you but it feels like that’s actually quite an endeavor to make sure you’re not gonna be liable for it being a rickety piece of crap.
Andrew: It’s gotta be safe, I know!
Andrew: Alright, enter this lawsuit.
Andrew: This is the first of its kind. It is involving a business that serves the public, that has a physical presence, but also maintains a website and the question is do the ADA’s provisions of accommodation also extend to the virtual side of the business?
Thomas: Oh! Interesting. Is it gonna be like for seeing impaired people? People who can’t use the app as easily as you or I?
Andrew: That’s exactly right!
Thomas: Oh, okay.
Andrew: I did a fair amount of research on this, ‘cuz look, you and I are a small business owner, my law firm is a small business. I am not insensitive to the idea of government regulations can be costly, so I looked up what it takes to make your website ADA compliant for blind, limited vision, individuals.
Andrew: The main thing that you have to do is, the person that’s creating your website has to have embedded alt-text for the graphics.
Andrew: There’s a program called JAWS, Jobs Access With Speech, and my understanding is that it is by far the market leader for vision-impaired people in using the internet, so you load the program, the program is an interface, it sits on top of the websites, it goes to those websites and then reads them out to you. Apparently – again, is it something that’s a challenge for an individual? It might be, but it’s on the same order as building a ramp. It’s not that hard to make sure your website is-
Thomas: I think it’s probably – with some knowledge of both of these things I think it’s way easier to make sure that your website is accessible than to install a physical ramp, I’ll just say, that’s my opinion.
Andrew: I defer to you, you have more experience with both building websites and building ramps, so I will defer to you!
Thomas: Kinda, a little bit, yeah! [Laughs]
Andrew: No, that was not a joke.
Andrew: That was a serious deference. Now let’s go back to Domino’s. Domino’s, multi-million dollar advertising campaign for its app, multi-million dollar advertising campaign for carrying out the pizzas, and we have Guillermo Robles, the plaintiff in this case, who tried to use the app to order the customized Domino’s pizzas and couldn’t.
Andrew: It didn’t interface, didn’t have alt text, didn’t allow him to use the app in the same way that he can use other internet sources. He tried multiple times to order customized pizzas on the mobile app but was (quote) “unable to place his order due to accessibility barriers of unlabeled buttons that do not conform to Apple’s IOS accessibility guidelines.” So he sued under the ADA and said, look.
Andrew: This isn’t granting me full and equal enjoyment of the facilities, services, accommodations of any place of public accommodation. It’s super easy for people who can see to order the pizzas, and it’s a super pain in the ass for me to try and order these pizzas. I get different buttons and it makes orders that I didn’t order and it doesn’t customize my order properly. You should treat me the same way you would a fully-sighted customer. The evidence is also – this is a reason you can’t introduce this before the jury because we want to incentivize subsequent remedial measures, but after bringing the lawsuit Domino’s modified its app, they created a telephone number that you could use from screen reading software to call in. There is some dispute in the original lawsuit as to whether that’s an equal accommodation.
Andrew: But again, I just wanna illustrate because this case is gonna be misrepresented by your Uncle Frank. Blind people use websites, and the-
Thomas: Just make the app work the way it should with the accessibility!
Thomas: That seems completely reasonable.
Andrew: It’s super easy.
Andrew: The threat – everyone is like “oh, well, frivolous lawsuit, hot coffee in the lap” whatever. Bringing the lawsuit often has a salutary effect on changing behavior.
Andrew: Domino’s looked at it and was like, “oh, alright, we should have done a better job in coding our app.”
Thomas: Yeah, not only Domino’s but the next company that’s doing this same thing.
Andrew: Exactly right.
Thomas: Is gonna be, like, oh maybe should just make this accessible to people.
Andrew: Yup! So that’s what happened. I wanna be super clear on this, this went up to the 9th Circuit, so the District Court was like “yeah, this is a question of first impression but it seems to us that this is a pretty clear-cut case.” Obviously the ADA was written in 1990, Commodore 64 era.
Andrew: It didn’t contemplate websites, but that’s not the end of it. I’ve had this discussion in regards to a number of other cases as well. Just because the people who wrote a law didn’t think about this particular application doesn’t mean that you default to “it doesn’t apply.” It means you take the principle and then figure out how to apply it to this particular circumstance.
Thomas: Yeah, or else our Constitution would be completely useless.
Andrew: Right, exactly. Look, it was why I pushed back on “the Second Amendment protects muskets” argument. I think that’s the weakest of the arguments against the Second Amendment.
Thomas: Well, good point, but, yeah.
Andrew: We don’t need to go all the way down!
Thomas: Yeah, okay.
Andrew: People can listen back to the ep, but yeah, in the same way, the easy way, what Scalia says in D.C. v. Heller is just like the First Amendment applies to the internet and applies to other modes of communication, just because there’s new technology doesn’t mean that we’ve invalidated the original principle. That’s certainly the case with the ADA, which, look, I read you. It says “general principle,” that’s how it begins.
The intent of the Americans with Disabilities Act was to integrate disabled Americans into the full economic consumer space of the United States. This is why it was broadly popular from the center right on over. It was popular as an equality measure, as an anti-discrimination principle, but it’s also a pro-capitalist measure. It’s about expanding the potential avenue of consumers that are out there and by imposing it as a government burden, yeah, okay, but it prevents the free rider problem. Now if all of your competitors also have to incur this cost well now you all incur the cost and now all of these markets are opened up for disabled consumers.
Thomas: I’m sure there are still Rand Pauls who are like “no, well if you can’t get your pizza at this company go to a competitor and the market will take care of it!” Oh, what’s that? Nobody’s making any accommodations? Well, that’s fine, you just don’t get to have anything. I’m sure there are still those libertarians, but yeah, I mean you said this was passed under H.W. Bush, right?
Thomas: So at least some amount of the right was-
Thomas: Huh, credit where it’s due.
Andrew: No, that’s exactly right. So, look, a couple of things to know about this. The 9th Circuit affirmed and said yeah, that’s absolutely consistent with the reading of the Americans with Disabilities Act is that if part of a place of public accommodation, a brick and mortar store, is to push the online experience and if that’s one of their distinctive, that’s what separates Domino’s from the other pizza places is you use their technology, you use their app, it’s super convenient, then yeah, we want to integrate blind and vision-impaired customers into that marketplace. We don’t wanna say, yeah, it’s super convenient unless you’re blind at which point it’s not at all convenient.
That’s the purpose of the Americans with Disabilities Act. Critically, I want to underscore this because you’re going to get the same kinds of straw-men we get every time there is an anti-discrimination act dating all the way back to the founding of this podcast. The ADA applies to places of public accommodation. The 9th Circuit makes it super-duper clear that it isn’t just the website, there must be (quote) “a nexus” that is a connection, “between the website and a physical place of public accommodation.”
Andrew: So that means, who knows, we may expand it in the future, but as of right now if you have a purely online business this does not apply to you, okay? It does not apply, you are not considered a place of public accommodation because you offer your stuff for sale on the internet.
Thomas: Well, I mean, maybe it should, but yeah.
Andrew: But right now when you’re understanding the scope of this decision and people are gonna say, it’s not hard to pick out what Uncle Frank is gonna say. First he’s gonna be like [Feigned outrage] “Blind people using the internet?! What’s next.”
Thomas: [Laughs] Yeah.
Andrew: That, you wanna be like “well Uncle Frank, you’re a big ‘ol bigot, blind people use the internet all the time and we want to encourage them to be a part of U.S. society and our consumer marketplace.” And then he’s gonna be like “well that’s fine but it’s gonna be super costly and everybody who’s got a website is gonna have to”- Nope! Only applies if you are a pre-existing place of public accommodation and there is a connection between that public accommodation and your website. The accommodations, as you’ve said, super not hard.
Finally, the law is still in flux. This is binding precedent in the States that are in the 9th Circuit, West coast States. Other Circuits are free to come to a different conclusion. I’m sure some of them will. That, by the way, is likely why the Supreme Court declined to grant Cert in this case, because remember that one of the largest reasons why the Supreme Court grants Cert is when there is a split amongst the Circuits, and right now we don’t fully know what the contours, what the landscape is, so the Supreme Court is like “yeah, there’s no need for us to take up this case right now because there aren’t inconsistent readings of the statute, so we’re just gonna stay out, we’re gonna decline.” So good result, good progress.
This issue is – I wanted to talk about it because we’re sort of at the forefront, this is developing right now and our conception of what it means to be a place of public accommodation, what it means to be in the economy, is something that’s going to be a matter of discussion for some time. So there you go!
Thomas: Yeah, good break down, I like it. I also think it’s just amazing that anyone would want to side with the multi-bazillion dollar corporation over the person who can’t see who wants to be able to use the services just like everybody else. For them to just put a little thingy in the code that’ll take five minutes to make sure this works, it’s amazing. It seems very reasonable. Alright, well that’s one down and more on our pizza, beer, guns agenda to go! So why don’t we take a quick break and then we will get onto the beer portion of our all-American agenda here.
[Commercial – getquip.com/oa, first refill free]
Beer – Corn Syrup Ads
Thomas: By the way, don’t mix these. I mean pizza, beer fine. Beer and guns maybe don’t, I’m just saying. Guns and pizza?
Andrew: Pizza and guns maybe.
Thomas: Pizza and guns, maybe. Again, I’m not a gun guy, but if you’re gonna gun then I guess gun and pizza is fine. It’s like a weird rock, paper, scissors. See which ones go together.
Andrew: [Laughs] Oh let’s play at the next live show, we’ll play pizza, beer, guns!
Thomas: Beer drenches pizza, pizza plugs the gun barrel. [Laughs]
Andrew: [Laughs] Good old gun, nothing beats that! [Laughs]
Thomas: [Laughs] Alright, well we’re onto the beer portion of our rock, paper, scissors game. What’s the Miller-Coors lawsuit?
Andrew: Alright, do you remember the Super Bowl from this year? In particular do you remember the unbelievably stupid Bud Light ad that aired and subsequent airings at a total investment of $13 million dollars.
Andrew: Claiming, yeah-
Thomas: I do.
Andrew: That Bud Light was not brewed with corn syrup.
Andrew: Unlike those posers, Miller Light and Coors Light.
Thomas: And we’ve been subjected to a [Sarcastically] hilarious whole entire year of these same characters, whatever the knight and the king? God it is so stupid. It is so stupid! But, yeah I was wondering about this. There’s actually a lawsuit? Okay. Because their whole gimmick was “we don’t – oh, we just got a shipment of corn syrup, let’s go over the Miller castle and see if they need it?”
Andrew: Yeah, exactly right. [Laughing] That is exactly how the ad breaks down, and when I saw the ad I think our friend Eli gave the best tweet which was “hey, are you afraid of high fructose corn syrup? Because Budweiser is betting $13 million dollars that you are!”
Andrew: Which I thought was pretty funny. As it turns out, that’s already done its damage. The reality is far more insidious than even that would lead you to believe. So my take was, alright, fine, whatever, corn syrup is – what makes high fructose corn syrup so bad is that we subsidize corn in this country.
Andrew: Because of that it’s super cheap to make corn syrup. It’s cheaper to make corn syrup than it is to make food, so the cheap food you can buy in the super market is basically like sawdust and high fructose corn syrup, and that’s why we’re the only country in the world where we have a massive obesity problem among our poorest citizens. Because it’s too expensive to buy nutritional food. That’s the problem with high fructose corn syrup, not that high fructose corn syrup is some kind of evil, toxic chemical in and of itself.
Thomas: And it’s just the same as sugar. It really is.
Andrew: Yeah, it is.
Thomas: I’ve tried both things, the problem is that we get too much of it, it’s not that it’s toxic or something.
Andrew: Yes, yeah. Right. Eating sugar is a bad thing.
Thomas: [Laughs] Yeah, exactly! If you drink a cup of sugar every day, even though it’s a [Sarcastically] healthy, normal ingredient that I can tell the name of! Naw, it’s not gonna be good. I’ll also say this, I would drink a thousand Miller or Coors which might have some high fructose corn syrup over the Budweiser beer which is water and beer coloring is all it is!
Thomas: Of course they don’t have high fructose corn syrup, there’s nothing in it!
Andrew: On cheap light beers, Miller Light is definitely my go to.
Thomas: Yeah, Miller’s great!
Andrew: Yeah, it tastes like beer! So the market share is, Bud Light has the largest market share for light beers, Miller Light is second, Coors Light is third. This commercial, I was shocked by how misleading the commercial is. So in other words, we just granted the premise, which is Miller Light has high fructose corn syrup in it, Bud Light has some other kind of sugar in it, and high fructose corn syrup is no different than any other corn syrup. Would you be surprised to learn that none of those beers have any corn syrup in them?
Thomas: [Laughs] Wow. Jeeze.
Andrew: So here’s what happens, and again I’m going to read this. We have a couple of listeners with brewing experience.
Andrew: I’m gonna speak to them, but I’m gonna read this from the court’s opinion. “The first step in brewing beer is to create a nutrient substrate called wort that yeast needs for fermentation.”
Andrew: “The sugars in the wort are sourced from malt or from a combination of malt and starchy grains like corn or rice.” So Plaintiff asserts that the sugar source is selected based on style and taste characteristics, which Defendant, that is Bud Light, does not dispute (although pointing out that cost may also be a factor). So the actual facts that are undisputed in this lawsuit is that Miller Light and Coors Light use corn syrup in combination with the wort.
Andrew: With the malt, to form the substrate that the yeast feeds on to create the beer.
Andrew: To turn the barley and hops into beer. The yeast eats all the corn syrup, so there’s no ultimate corn syrup in Miller Light or Coors Light, as if it would matter. As the Court says – and Bud Light, you still have to feed, because yeast eats sugar you still have to feed them something. Instead of using corn syrup, Bud Light uses malt plus rice, and then as the Court notes “there is no meaningful difference between using rice or corn syrup as an ingredient-
Andrew: -in terms of the health or safety of the resulting beer product.”
Thomas: Well yeah. Well of course. But Budweiser’s advocate, I could imagine that feeding this yeast this sugar, and then I don’t know what they do if they like mate? What do they do? Do they have a big yeast orgy and the byproduct? Or is it just yeast excrement? Either way. I could see a possibility that yes, they just need to feed on sugar and the byproduct is the end result essentially, in simple terms, but could there be taste differences? Some level of difference even though, yes, the sugar’s getting all eaten up by the yeast, the end result could be different depending on the type of sugar that you give them?
Andrew: Yes, and in fact that is the primary argument. Again, as with all beer flavor is a matter of personal characteristics.
Thomas: [Laughs] And again, if it’s Budweiser, whatever you’re doing is resulting in no flavor, so don’t do that!
Andrew: [Laughs] Right.
Thomas: Stop doing that.
Andrew: The kind of sugar that the yeast eat effects the flavor of the beer.
Andrew: At the end of the day, and again this is from the Court’s opinion, (quote) “no corn syrup appears in the Coors Light and Miller Light products at the end of fermentation.”
Andrew: So the lawsuit here, and this is two claims under the Lanham Act which we’re gonna talk about, it’s exactly why I didn’t share with you and we both kind a fell for it. The lawsuit is this ad campaign falsely gives viewers the impression that Miller Light and Coors Light are made with corn syrup, that they have high fructose corn syrup in them and they do not.
Andrew: It’s an ingredient in part of the process, but no corn syrup remains at the end of the brewing process, so if you’re one of these I’m not gonna drink anything that has high fructose corn syrup in it you now falsely believe, whether or not that’s sensible, you now falsely believe that Miller Light has high fructose corn syrup in it when it does not. That is fraudulent advertising.
Andrew: So the lawsuit alleges two counts of action under the Lanham Act, 15 U.S.C. § 1125, subsection (a) is the false advertising claim and what you get for that is you get damages. That says “any person in connection with goods or services makes any false designation of origin or false or misleading description of fact or false or misleading representation of fact which is likely to cause confusion or to cause mistake as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or in commercial advertising misrepresents the nature, characteristics, qualities, or geographic origins of another person’s goods, services, or commercial activities shall be liable for damages.”
Seems pretty clear here that whether or not it is sensible to say, “oh, I don’t drink stuff that has HFCS in it,” causing people falsely to believe that Miller Light has HFCS in it seems pretty clearly to violate this provision.
Thomas: [Groans] Look, I hate Budweiser as much as the next – I dunno, apparently it’s the most popular beer of all time so I dunno, as much as the next Andrew, but are we gonna dig into the very specific facts of the commercial? Because the commercial that I remember, correct me if I’m wrong, is talking about it as an ingredient in the process, it’s like “oh, here’s this bag of corn syrup, who needs this?” It’s not inaccurate to say that these other beer companies use it to make their beer, right?
Andrew: So that’s not inaccurate. What is inaccurate is – and notice that the Lanham Act specifically permits this, is the overall impression that you get.
Andrew: So in addition to the barrels that showed up in this Super Bowl ad, you have, for example, the Annhuiser-Busch twitter account tweeted out a “family portrait” of Miller Light – I may use this as the show graphic – that is a royal purple background, gold frame, and it is a can of Miller Light next to a bottle of Karo Corn Syrup.
Andrew: They ran an ad that is a 24-second ad that features first a cutaway to a woman holding a bottle of Miller Light with the screen cap that says “corn syrup, Miller Light” and then to another woman that says “no corn syrup, Bud Light.”
Andrew: I could continue to go through.
Thomas: [Laughs] Yeah, it’s gonna turn into Austin Powers. Yes, penis enlarger is my bag, baby! All that kind of stuff.
Andrew: [Laughs] There was, after the Super Bowl on March 20th there was another commercial with the Bud Light king guy in it, right?
Andrew: That says, “Miller, Miller, Miller, I’ve been aware of your recent advertisement. I brought you your shipment of corn syrup and this is how you repay me? Look, if you’re set on imitating our kingdom may I suggest you imitate us by putting an ingredients label on your packaging.”
Andrew: “People wanna know what ingredients are in their beer.”
Andrew: “But what do I know? I’m just the king of the kingdom that doesn’t brew beer with corn syrup.”
Andrew: Then the voiceover is “Bud Light, brewed with no corn syrup.” So again, you have a little bit of the “are you technically correct, the best kind of correct,” but on the other hand it kinda seems like the continued impression is, particularly with respect to the what about labeling your ingredients, is designed to give the impression that there is corn syrup in the finished product.
Thomas: Yeah, that definitely does give that impression.
Thomas: I’m glad now they’re sticking to the brilliant commercial that is there’s a party on the tower. Oh we went to the other tower.
Andrew: Oh, we went to the wrong one. Yeah, I don’t-
Thomas: There’s two towers [Yelling] What’s the joke?! Sorry.
Andrew: Can I – as long as this is a follow-up to the Q&A though, the Budweiser commercial with Charlize Theron in it, though, is amazing.
Thomas: [Sighs] Well anything with Charlize Theron is – I don’t even know what you’re talking about and I already like it.
Andrew: Oh, it’s great. They’re in like this hole in the wall dive bar and you hear kinda typical fratboy bro cheering coming from the back room, they’re like “yeah, yeah! You rock!” and you see Charlize Theron roll her eyes, walk by, she’s got the Budweiser, whatever they’re shilling in her hand, and she’s like “here, hold my beer.” Then she says “wait, on second thought,” and then she walks in and she’s holding the beer in her left hand and taking one-handed pool shots and running the table and she arm wrestles this guy.
Andrew: It just kicks ass.
Thomas: I don’t remember that.
Andrew: It’s a super – it airs in baseball games.
Andrew: Too much, but they play Run DMC’s “It’s Tricky” in the background so it’s – I could watch that ad on continuous loop all day long. Anyway, enough of my Charlize Theron love.
Thomas: I mean, I’m here for it all day.
Andrew: Good, good! [Laughs]
Thomas: I’m a big fan, but I’m sure the listeners would probably rather us move on.
Andrew: Okay. So at this stage, by the way, there has been no ruling on the subsection (a) Lanham Act complaint, that’s count one. It will be up to the jury to determine. Whenever you say you violate the law by giving a misleading impression, this is kinda like the Led Zeppelin case.
Andrew: It’s gonna be up to the jury to say “alright, well, taken together do all these ads, do I come away with the Thomas impression or do I come away under the impression-
Thomas: Hey, don’t put me on the other side of this one though!
Andrew: Okay. [Laughs]
Thomas: You’re poisoning the well with that comparison.
Andrew: Fair enough.
Thomas: I have a lot more faith in the jury to be able to determine this than I did with the Led Zeppelin…
Andrew: Okay. But count two is subsection (c), 1125(c) of the Lanham Act which is what enables you to get an injunction. It says “dilution by blurring or tarnishment.” The cause of action is this: “Subject to the principles of equity, the owner of a famous mark that is distinctive shall be entitled to an injunction against another person who commences use of a mark or a trade name that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark regardless of the presence or absence of actual or likely confusion of competition or of actual economic injury.”
The MillerCoors’ argument was, hey, you’re tarnishing our brand name. You’re suggesting that we use corn syrup, high fructose corn syrup which people think is super icky, in finishing our beer and we don’t and we want you to stop. That is, in fact, what the trial court out of Wisconsin, because of course it was, did! It granted a preliminary injunction that enjoined MillerCoors from saying any of the following things. One, that Bud Light contains (quote) “100% less corn syrup,” (end quote); which, by the way, they did make that claim, so again, I think contains, it makes it harder for anyone to argue the “no we’re just talking about the process.”
Andrew: Two, to make Bud Light in direct reference to no corn syrup without any reference to brewed with, made with, or uses. So, again, court’s trying to protect the right of Anheuser-Busch to market its product in a way that’s not deceptive, to say “ we don’t brew our product with corn syrup, we use rice.” That’s a fair distinction to make, and followed up by “the rice makes it tastier,” which in the case of Bud Light is clearly not the case.
Three, Miller Light and/or Coors Light and corn syrup without including any reference to brewed with, made with, or uses, so the inverse. And four, describing corn syrup as an ingredient (quote) “in” (end quote) the finished product. That injunction was issued, it was then appealed to the 7th Circuit, it is the subject of briefing right now. I want to tell you, the 7th Circuit’s argument, the reason I focused on the trial court argument is because the 7th Circuit is all a bunch of procedural defects that even OA listeners would find kind of tedious. [Laughs]
So we will find out if it survives the various procedural defects before the 7th Circuit, but assuming that it does – and I think it likely is – we will see some award of damages, it’ll be settled, and we will hopefully see an end to the Budweiser King corn syrup commercials. They are presently enjoined, so this is – we’ve talked about the standards.
Thomas: Well they can’t say certain things, right?
Thomas: They can still have the horrible characters doing [Sarcastically] amazing comedy about a tower.
Andrew: [Laughs] Yeah, there is no Lanham Act that prevents you from making bad comedy in commercials, but maybe there should-
Thomas: There should be, yeah.
Andrew: [Laughs] I agree with that.
Thomas: A panel of me that gets to evaluate all of these.
Andrew: So there you go, that’s our beer.
Andrew: So the lesson is, you can be misleading in the advertising for your beer.
Thomas: I just love how much money went into this blunder. I mean, I hate Bud Light so I’m reveling in the amount of money that they just put into buying the spot is one thing, and then all the stupid – you know how many writers and production and whatever that they tried to shop around to get this “brilliant” Super Bowl ad?
Thomas: The money that they put into Super Bowl ads is so much, and they came up with this thing that is stupid that nobody should care about that also is impossibly illegal and gonna cost them more money? [Laughs] [Sighs] Ah wow!
Thomas: Maybe if they watered down their beer a little more they can make up for the shortfall.
Andrew: [Laughs] Maybe! Well now that we’ve lost all the Bud Light listeners-
Thomas: I don’t think we ever had them to begin with. I think our show is not for Bud Light listeners, I’m just saying – or Bud Light drinkers, I’m just saying! Look, we’ve all accidentally had one or been in a situation where that’s all there was and, you know, you gotta do what you gotta do, but anyway. Alright-
Thomas: Let’s take a quick break and go on to the final chapter of our trifecta of American dedication, here. Pizza, beer, and guns.
[Commercial – noom.com/oa]
Guns – The Dickey Amendment
Thomas: Okay, it’s time for guns, what’ve you got?
Andrew: Yeah, this is an important clarification, not for the next year and a half because our country is under the thumb of the National Rifle Association, but things that can be done starting in 2021 when we elect Elizabeth Warren or whoever we elect as our next President. It has to do with something called the Dickey Amendment.
I wanna talk a little bit about the history of that because this is being misunderstood and there are things that can be done solely at the executive level, so it doesn’t require Congress, can’t be McConnell’d and it is something to look forward to in 2021. So we’ll begin our story in 1993, when Arthur Kellerman and a team of sociologist researchers conducted a study with two grants from the Centers for Disease Control. Their findings were published in the New England Journal of Medicine, the most prestigious journal in its field. That journal article was called “Gun Ownership as a Risk Factor for Homicide in the Home.”
So you can guess that that was probably not a super well-received article from the National Rifle Association. The top line conclusion of that article, I’m just gonna read it to you, is “Keeping a gun in the home was strongly and independently associated with an increased risk of homicide, adjusted odds ratio 2.7.” So, in other words, almost 3 times more likely to have an increased risk of homicide in the home by keeping a gun in the home.
Thomas: Hmm. Wouldn’t you know it.
Andrew: The 95% confidence interval is 1.6 to 4.4, so in other words, 95% of the outcomes, at least if you wanna take the best case scenario in a statistically valid sample size is that keeping a gun in the home increases the risk of homicide by 60%, which is still a lot! It could more than quadruple it, the average is about triple.
Virtually all – and then you might say “oh, sure, you crazy liberals and your study, it increases the risk of homicide because you’re a good guy with a gun shooting a bad guy with a gun, right?” Wrong. “Virtually,” again I’m quoting here from the study, “virtually all of this risk involved homicide by a family member or intimate acquaintance.” So in other words you’re 3 times more likely to shoot someone if you have a gun in the home and it’s overwhelmingly likely that that person is going to be a friend or family member. Then, and again, this is not crazy liberal Andrew saying this, this is the New England Journal of Medicine publishing the results of peer-reviewed statistically valid science. “Rather than confer protection, guns kept in the home are associated with an increase in the risk of homicide by a family member or intimate acquaintance.”
So those are facts. The National Rifle Association was really, really not happy about those facts, so they convinced a Republican from Arkansas, a guy named Jay Dickey, to introduce an amendment in the Federal budget, because, look, even today we still mostly pass budgets.
Thomas: Mm-hmm. Barely.
Andrew: Yeah, I agree, barely, but we do pass them. So the writer says, (quote) “none of the funds made available for injury prevention and control at the Center for Disease Control and Prevention made be used to advocate or promote gun control.” The CDC has, for the past two decades, interpreted the Dickey amendment as prohibiting all research on gun violence. Again, this is passed in the last 20 budgets, it passed in the last budget, but the important thing is there is a line in the accompanying report that says that the CDC can conduct research into gun violence, they just can’t use the government appropriated funds to specifically advocate for gun control.
So in other words, you could have a repeat, you could validate the Kellerman study, you could do additional research on ammunition, you could do research on specific kinds of gun control so long as you don’t advocate for it. Now, obviously, there is nothing in Trump’s CDC budget for research into gun violence, but Jay Dickey has publicly said that, yeah, the amendment was not intended and did not operate and the sense of the Congress was not that it prohibited research into gun violence only that it prohibited the CDC from making a partisan endorsement of any kind of particular policy outcome.
Now that’s not controlling, what a congressman says his writer means is not necessarily what a court says it’s going to mean, but it’s pretty good evidence so the takeaway from this is, I believe, and particularly this is salient with the explosion of mass shooting in public schools, I think there is no bar. The Dickey Amendment, A) Democrats should strike out the Dickey Amendment from the next budget, but B) even if they don’t, the Dicky Amendment itself is no bar to gathering the kinds of evidence that we need by experts to make the case for thinking about sensible gun reform going forward. So a little bit of good news to go with our pizza and beer day!
Thomas: Yeah. Let’s crack open a nice cold anything but Budweiser and probably not Domino’s and celebrate!
Andrew: [Laughs] Yeah, alright! We’ll get some artisan pizza, some local microbrew. Dogfish Head Brewery near me makes a “Slightly Mighty” lo-cal IPA-
Andrew: That is, yeah, no it’s like 3 and ½ grams-
Thomas: I thought you were anti IPA?
Andrew: Oh, no no. I am very pro IPA.
Thomas: Oh sorry, I mistook you for somebody else.
Andrew: Yeah, you apparently did.
Thomas: I apologize, deeply.
Andrew: No, it’s okay.
Thomas: No, you’re anti-sours? That’s right.
Andrew: Yes, I have tried. I keep trying and I really wanna be-
Thomas: It’s interesting because sours is just the logical extension of IPA, really. Just too far for you.
Andrew: I get it, yeah, it’s too far.
Thomas: Yeah, no, I agree. On occasion I partake but eh, you might as well just have an IPA, it’s too sour.
Andrew: Alright, we’re agreed. So there we go!
Thomas: Well that was what we came here to do! [Laughs] Now it’s time for, I have to switch it, this is Top Patron Tuesday, that’s right. Hall of Famer, there’s no day that starts with an H so we can’t do Hall of Fame Halllsday but Top Patron Tuesday!
T3BE – Answer
Thomas: Alright now it’s time to find out the thrilling conclusion of T3BE!
Andrew: This is a question about breach of contract and this involved a first time innkeepers, somebody who had no knowledge of either the innkeeping trade or the laundry trade, and he engages in a contract with a laundry services company for daily service. The fact patters specifies that the laundry company knows that the innkeeper intends for daily service to mean 7 days a week, but that in the ordinary course of events in the trades we know that both from the laundry service prospective and the innkeeping industry perspective that daily service excludes service on Sunday. First two weeks of the contract go by and the laundry service doesn’t pick up on Sundays, then they say we’re never gonna do that, the innkeeper cancels the contract, the laundry service sues for breach of contract. What’s gonna happen? Thomas, you chose answer B. You eliminated A and C and then settled on the “no” answer. I wanna tell you that A “no” answer is correct.
Thomas: Ah, yeah. It’s funny, as you were reading this I was like “oh shoot, maybe it will be A!”
Andrew: Yeah, you played around with A a lot. So the correct answer is in fact A, A is “no because the laundry company knew the meaning the innkeeper attached to daily service and therefore the innkeeper’s meaning will control.” While this is a restatement of contracts question, this is testing the basic principle that a contract requires a meeting of the minds as to the terms of the contract.
Andrew: So when you know what the other side intends, even if there is an ambiguity, the fact that the other side if you know at the time the agreement was made that the party attaches a particular meaning to a phrase, that’s what you’ve agreed to.
Thomas: That’s what tripped me up because it didn’t seem like just because the laundry person knows the innkeeper therefore by default the innkeeper – because what if the innkeeper thought daily service means like 400 times a day? Just because the laundry company knows that they mean that that’s what controls?
Andrew: Yeah, when you know-
Thomas: And when I thought about it again, it’s like well, yeah, I guess if you know that the innkeeper – I should have gotten this one right, I blew it. I almost at the last minute did change to it because I was like “well that is the only one that uses that critical fact.”
Andrew: Yup, yup!
Thomas: Just something bothered me, but ugh.
Andrew: And the answer-
Thomas: I think this was a getable one that I blew.
Andrew: I was rooting for you to change, I listened to you sort of work it through.
Andrew: The check in the law for “it means 400 times a day” is then don’t say yes.
Thomas: Yeah, yeah.
Andrew: It’s really about-
Thomas: Then just say “oh, hey, clarification,” [Laughs] this means six days a week.
Andrew: Yeah, this means six days a week.
Thomas: Yeah I should’ve gotten to this, I wanna apologize to the listeners, I’ve let them down.
Andrew: [Laughs] You’ll do better next time.
Thomas: A lot of the time it’s a 50/50 – yeah, well there’s no guarantee of that, but- [Laughs] I will do something next time, we’ll see!
Andrew: [Laughs] Let me go quickly through the alternate answers.
Andrew: So we said A was because he knew what the other party meant. B, the answer you picked was no because the parties attached materially different meanings to daily service and therefore no contract was formed. The reason that’s incorrect is because we want actually there to be a contract when the parties understand each other’s terms because this way if the innkeeper had suffered damages-
Thomas: Well, but they don’t understand each other’s terms, one guy understands the terms of the contract.
Thomas: And the other person-
Andrew: But the other person knows that, so in other words-
Thomas: But let me ask you this on B.
Thomas: What happens if you take out that fact that the laundry keeper knew what the innkeeper-
Andrew: Yeah, if you take out that-
Thomas: Then would it be B?
Andrew: That’s exactly right.
Andrew: If you take out that fact then there is no meeting of the minds and therefore no contract was formed.
Andrew: So, yup.
Thomas: Yeah, I should’ve gotten this one.
Andrew: C was yes because the parole evidence rule will not permit the innkeeper to prove the meaning he attached to daily service. That is incorrect, parole evidence is extrinsic evidence when you have a written contract. You recognize the term and correctly surmise that it did not apply in this situation.
Parole evidence is excluded when you are attempted to vary the meaning of a contract, so if the contract says “I’ll pay you $10,000 dollars” and then you say “yeah, but I have an email that says you really agreed to pay $15,000 dollars” parole evidence says get out of here with that email thing, don’t sign a contract for $10,000 if you really mean $15.
Andrew: But parole evidence is always permissible when a term is ambiguous.
Thomas: Ah. Okay.
Andrew: So here, yeah, the argument is at best that it would be ambiguous so parole evidence would not apply here.
Thomas: So correct elimination. I knew there was something fishy about it but I couldn’t quite put it into the words that you put it in.
Andrew: Yup. Then D is yes because the trade usage will control the interpretation of daily service. This was right “no” answer to keep around. I’m gonna read from the textbook directly-
Thomas: Hmm, uh “yes” answer.
Andrew: Yes, the best “yes” answer to keep around. While it is often the case that trade usages control the interpretation of terms in a contract that is not true here because the laundry company knew that the innkeeper was not aware of the trade usage.
Thomas: Yeah. I blew it, I really did. I had everything right except that one crucial, I should’ve changed at the last minute, I should have realized, oh wait, that crucial fact does change this, so…
Andrew: Yeah, take the box.
Thomas: Yeah I blew it! My fault. Sorry everybody, I’ll beat myself up over it.
Andrew: I feel like you’ll get back on that horse with our next question.
Thomas: Yeah, my luck had to end sometime, but yeah. I wonder how I’m doing, I have no idea. It’s been a while since we’ve had a reckoning.
Andrew: You are 81 for 150, which is 50-
Thomas: Now does that include live show performances people maybe haven’t heard yet?
Andrew: It does not, yeah it does not.
Thomas: Okay. So we’ll see what that means.
Andrew: Could be! Could be even better than that, or worse.
Thomas: I could be doing better or worse.
Andrew: So you’re at 54% except that you’re not, you’re either better or worse than that.
Thomas: Ah, 54?
Thomas: Dang, I thought I was a little higher than that.
Andrew: I did too.
Thomas: I guess that bad streak I was on was really bad, so [Laughs] that’s the answer to that. Well okay, that was fun, I blew it sorry everybody. Let’s see who didn’t blew it, didn’t blow it!
Thomas: And won this week’s T3BE, who’s our big winner, future Andrew or Optimist Prime or somebody? Whoever it is, Negatron.
Brian: This week’s winner of T3BE is Perfidious Pete who’s answer was “I’m going with A. If the evidence shows the laundry service knew the intended Sunday pickup, then the industry definition isn’t relevant. I mean, it’s not like they agreed to build a border wall, only to later find out it’s supposed to go in Colorado.” Give Perfidious Pete a follow, @PerfidiousPete.
Thomas: Alright thanks so much for listening, thanks most of all to our patrons for making this show happen. Go get those patron goodies, patreon.com/law, and we will see you next time!