Posted by Linda Bonvie
August 2, 2012
Back in March, attorneys for several major manufacturers of high fructose corn syrup named as defendants in a landmark legal action asked that the case against their clients be dismissed on grounds that the Corn Refiners Association (CRA) alone was behind continued claims that “your body can’t tell the difference” between HFCS and sugar. But this week, the judge hearing the case found that, in effect, she couldn’t tell the difference between the association’s assertions and those of four of its member companies who had actively supported the effort.
As a result, the lawsuit will now proceed against agribusiness giants Archer Daniels Midland (ADM) and Cargill, along with Corn Products International, Tate & Lyle and, of course the CRA itself, all of which have been accused of false advertising by producers of actual sugar.
The ruling by U.S. District Judge Consuelo B. Marshall in a Los Angeles courtroom was described by Adam Fox, co-lead counsel for the plaintiffs, as “an important win for all American consumers, as well as my clients.” What it means is that membership in a trade association can’t be used to shield companies from liability for wrongdoing in which they’ve played a role. In this case, the alleged wrongdoing is the (still) ongoing misrepresentation of HFCS as a form of sugar, despite the Food and Drug Administration’s having recently ruled that HFCS is most decidedly not sugar in rejecting the CRA’s petition to have its name changed to “corn sugar.”
Besides asking that the court enjoin the defendants “from continuing to make false and/or misleading representations of fact about HFCS, the plaintiffs in the case are also seeking “damages for the harms they have suffered and continue to suffer as a result of Defendants’ false and/or misleading advertising, promotion and/or marketing.”
In refusing to dismiss the case against the four corporate defendants, the court cited individual allegations made against each of them — for instance, how both Cargill and Corn Products websites “provide direct links to the (CRA’s) ‘Sweet Surprise’ campaign website to expand exposure to and the audience for the false advertising campaign.” In addition, Cargill and others, including Tate & Lyle, are accused of using “spokespersons to disseminate the advertising theme that HFCS is no different than sugar” while ADM, Corn Products, and the other companies involved are said to have “similarly repeated, endorsed, and ratified the messaging of the advertising campaign in direct communications to customers, ranging from detailed presentations to simple correspondence.”
The plaintiffs have further claimed that Cargill and Tate & Lyle “used spokespersons to disseminate the advertising theme that HFCS is no different than sugar” and that ADM, Tate & Lyle, Cargill, and Corn Products have “ratified the rebranding of HFCS” by using the phrase “corn sugar” in place of HFCS.” They’ve also charged that senior executives or other authorized spokespersons for member companies have at times “endorsed, supported and ratified the name change.”
Undeterred by courts and regulators, the ‘Mother Ship’ stays the course
Of course, one need look no further than the “Sweet Surprise” website itself – the HFCS ‘Mother Ship’, so to speak – to see how obstinately persistent the CRA itself has been in holding onto that thought.
“Take a closer look, HFCS is simply a form of sugar made from corn” is the first thing that pops up when you click on it. And under the heading “What is HFCS?” you see the headline “Sugar is sugar,” with copy describing high fructose corn syrup as “a sugar made from corn” and the sentence, “In fact, due to their similar structures, many health professionals agree that whether it’s sugar from corn or sugar from cane, your body can’t tell the difference—your body metabolizes both the same way.”
Then there’s the response to Judge Marshall’s edict from CRA President Audrae Erickson that “This ruling is solely about who is included in the lawsuit and has no bearing on the merits of the case which are about ensuring that consumers get the facts regarding high fructose corn syrup.” Consumers, Erickson added, “have a right to know what ingredients are in their food and beverages, especially as we’re seeing more and more people concerned with managing their sugar intake. It’s essential for consumers to understand that high fructose corn syrup is another kind of sugar despite the processed sugar industry’s attempts to censor our education campaign.”
Now let’s for a moment consider that response in light of the precise wording of the FDA’s May 30th letter to Erickson, in which it formally denied the CRA’s long-standing request to change the name high fructose corn syrup to “corn sugar.” In addition to reaffirming the fact that “corn sugar” already was the official name for dextrose, a non-fructose ingredient, the letter notes that “FDA’s regulatory approach for the nomenclature of sugar and syrups is that sugar is a solid, dried, and crystallized food; whereas syrup is an aqueous solution or liquid food.” Therefore, “the use of the term ‘sugar’ to describe HFCS, a product that is a syrup, would not accurately identify or describe the basic nature of the food or its characterizing properties.”
Given those very specific and unequivocal reasons from the FDA as to why HFCS and sugar aren’t the same thing, I have a question for Ms. Erickson: What part of “would not accurately identify or describe” don’t you understand?