C.R.A. member companies back in HFCS lawsuit

by Jeff Gelski
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LOS ANGELES — Archer Daniels Midland Co., Cargill, Ingredion (formerly Corn Products International, Inc.) and Tate & Lyle are again defendants in a lawsuit alleging false advertising for high-fructose corn syrup from the Corn Refiners Association, according to a July 31 ruling from U.S. District Court Judge Consuelo B. Marshall in Los Angeles. A previous ruling had taken the companies, which are C.R.A. members, out of the lawsuit.

“This is an important win for all American consumers, as well as my clients,” said Adam Fox of Squire Sanders, co-lead attorney for the sugar producers and associations behind the lawsuit. “Judge Marshall’s ruling clears the way to allow this lawsuit to proceed so that we can assure an end to the false advertising and make the agribusiness giants behind it answer for their misconduct. We look forward to taking the next steps in this important case.”

The Washington-based C.R.A. said it is eager to defend its right to inform consumers that HFCS is just another kind of sugar.

“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,” said Audrae Erickson, president of the C.R.A. “Consumers have a right to know what ingredients are in their foods 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 attempt to censor our education campaign.”

While the court has yet to rule on whether HFCS may be called corn sugar, the Food and Drug Administration has. The F.D.A. on May 30 denied a C.R.A. petition requesting that corn sugar be allowed as a common or usual name for HFCS. The F.D.A. said sugar is a solid, dried and crystallized food and syrup is an aqueous solution or liquid food. The F.D.A. ruled HFCS is an aqueous solution and thus it is a syrup, not a sugar.

The F.D.A. has said HFCS may be labeled as natural when a common enzymatic process is used.

The lawsuit originated on April 22, 2011, when it was filed by the Western Sugar Cooperative in Colorado, Michigan Sugar Company and C&H Sugar Co. The lawsuit said the C.R.A. claim that HFCS is corn sugar is false and misleading. The plaintiffs cited Internet advertising, exhibitions at professional organizations, television commercials, print advertisements and the web site www.sweetsurprise.com.

The C.R.A. filed a motion to dismiss the lawsuit on Aug. 22, 2011, but the court denied the motion on Oct. 21, 2011. However, the court on that day granted the C.R.A.’s request to dismiss C.R.A. member companies from the lawsuit.

The sugar producers and two sugar trade associations on Nov. 21, 2011, filed another complaint seeking to put the member companies back into the lawsuit. The complaint said that member companies consist of corn refiners whose officers are board members of the C.R.A., that the C.R.A. is an agent of the member companies and that an overwhelming majority of regular membership dues to the C.R.A. come from member companies.

In their complaint, the sugar producers and associations add that web sites for Cargill and Ingredion provide direct links to www.sweetsurprise.com, that Cargill and Tate & Lyle have used spokespersons to disseminate the advertising theme that HFCS is no different than sugar, and that ADM, Cargill and Ingredion have used the phrase corn sugar to denote HFCS in pricing sheets and other communications.

The court on July 31 ruled the sugar growers and associations set forth “detailed allegations” against the member companies and pleaded “sufficient facts” to establish that a principal-agent relationship exists.
The sugar producers and associations failed to specify any facts linking Roquette America, Inc., another member company, to the C.R.A. campaign, and thus Roquette America was dropped from the lawsuit.

The lawsuit now is pending and in the discovery phase where parties exchange information, according to the C.R.A. No trial date has been set.

“Our ultimate success will not only enable consumers to better understand the sugar content of their foods and beverages, it will send a powerful message to the Sugar Association and other business interests that you cannot stop consumer education as a means to stifle competition in the marketplace,” Ms. Erickson said.

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