Lawsuit over HFCS campaign moves forward
BakingBusiness.com, Oct. 24, 2011
by Jeff Gelski

LOS ANGELES — A lawsuit claiming a Corn Refiners Association campaign for high-fructose corn syrup is false and misleading will move ahead after a U.S. district court in Los Angeles on Oct. 21 denied a motion from the C.R.A. to dismiss the lawsuit.

“We look forward to a final resolution of our case so that the Corn Refiners Association is forced to end its deceptive campaign aimed at misleading American consumers,” said Adam Fox of Squire, Sanders & Dempsey, who argued the case before the court.

Audrae Erickson, president of the Washington-based C.R.A., said, “It is important to note that this does not mean the sugar industry’s allegations are true, only that they have alleged enough to get to the next stage of the case on the Lanham Act claim.”

The Western Sugar Cooperative in Colorado, Michigan Sugar Co. and C&H Sugar Co. filed the lawsuit on April 22. It said the C.R.A. claim that HFCS is corn sugar is false and misleading. The plaintiffs cited Internet advertising, exhibitions at professional organizations, TV commercials, print advertisements and the web site www.sweetsurprise.com.

“The sugar industry is attempting to shut down free speech rather than compete in the marketplace,” Ms. Erickson said.

She also said she disagreed with the sugar industry’s claim that the C.R.A.’s campaign to defend the merits of HFCS is deceptive.

“To the contrary, the educational campaign is science-based and supported by a wide variety of medical and scientific experts,” Ms. Erickson said.

The C.R.A. filed a motion to dismiss the lawsuit on Aug. 22. It argued its statements on HFCS are part of an educational campaign as opposed to advertising subject to the federal Lanham Act. The statements focus on the role of HFCS/corn syrup in health and not on proposing a commercial transaction, according to the C.R.A. Second, the C.R.A. argued that since it is a trade association, it does compete with the plaintiff sugar producers and does not promote or sell any products or services.

The court ruled on Oct. 21 the fact that statements relate to a public health issue does not insulate them from regulation under the Lanham Act. The court also ruled the C.R.A. statements were promotional.

“Although C.R.A.’s statements do not explicitly say ‘buy’ or ‘purchase’ HFCS, it is clear that the purpose of C.R.A.’s statements is to promote HFCS to purchasers,” the court said. “As a trade organization made up of corn refiners, an economic motive exists, and the statements refer specifically to high-fructose corn syrup. The statements themselves also clearly are promoting corn syrup to food and beverage purchasers.”

The court also addressed C.R.A.’s claims of HFCS being corn sugar and HFCS being natural.

The C.R.A. in September of 2010 filed a petition with the F.D.A. seeking to change the name of HFCS to corn sugar.

“Resolution of the citizen petition before the F.D.A. would not resolve the issues raised by the plaintiffs’ suit,” the court said Oct. 21, 2011. “The issue of whether HFCS is just like table sugar has not been placed by Congress within the jurisdiction of the F.D.A. Furthermore, the issues presented here, revolving around allegations of falsity in advertising, do not call into question the F.D.A. expertise.”

The F.D.A. also has said HFCS may be labeled as natural when a common enzymatic process is used. The court said the C.R.A. “(cites) no authority for the proposition that the F.D.A. can conclusively determine whether a particular product or substance is natural.”

Ms. Erickson did point out the court struck down the sugar industry’s state law claim under the California anti-SLAPP statute, which provides for early dismissals of meritless cases aimed at chilling freedom of expression. SLAPP stands for strategic lawsuit against public participation. The C.R.A. said it thus is entitled to recover its attorney fees and costs against the sugar industry members who brought suit.