Audrae Erickson president of the DC based lobby group the Corn Refiners Association has little to celebrate today. For many months the CRA has been sponsoring TV ads and web sites supporting a product called High Fructose Corn Syrup (HFCS), suggesting that this franken-sugar is just like real sugar. ‘Sugar Is Sugar’ is the catch phrase used on the TV ads.

HFCS has come under fire in recent years, it is a sweetener that turns up in many products, particularly soft drinks and canned food products. Some experts see a link between HFCS and obesity. And there has been somewhat of a consumer rebellion against the product. Hunts Ketchup for example, felt the heat and actually made a huge point of advertising the fact that they had stopped using it.

Hunts were somewhat evasive when I spoke to them. You can read the interview here.

Obviously the CRA had to ‘sweeten’ the consumers perspective about HFCS, and so they concocted the idea of changing the name to Corn Sugar, and the whole ‘Sugar Is Sugar’ nonsense.

Needless to say the producers of real sugar were a little hot under the collar. It is not often that two titans of Big Food go after each other, but indeed they did.

The latest development came yesterday. Here is the press release.

A Major Victory for Consumers in Widely Watched Legal Battle Federal Judge Holds ADM, Cargill Must Answer False Advertising Suit

Los Angeles, July 31, 2012  –  U. S. District Court Judge Consuelo B. Marshall today ruled that agribusiness giants Archer-Daniels-Midland (ADM), Cargill and others accused of a national advertising campaign to conceal the truth about high-fructose corn syrup (HFCS) cannot escape liability.  The companies had argued that they could do so by hiding behind their trade association, the Corn Refiners Association (CRA).

Attorneys for Western Sugar Cooperative and other sugar farmers that brought the suit have targeted advertising claiming HFCS is a natural “corn sugar” that “your body can’t tell the difference” from the common table sugar that comes from sugar cane and sugar beets.  Judge Marshall had previously ruled that a preliminary review of evidence showed “a reasonable probability of success” that these statements are false.

More recently, the United States Food and Drug Administration (“FDA”) rejected a petition by the CRA to change the common or usual name for HFCS to “corn sugar” because, among other reasons, “the use of the term ‘sugar’ to describe HFCS . . . would not accurately identify or describe the basic nature of the food or its characterizing properties.”

In her ruling today, Judge Marshall said, “Plaintiffs allege with particularity facts for a false advertising claim against Member Companies ADM, Cargill, Corn Products, and Tate & Lyle.”

Co-lead attorney for the sugar farmers, Adam Fox of Squire Sanders, declared, “This is an important win for all American consumers, as well as my clients.  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.”

There is little doubt that the ensuing litigation will be interesting. It will be a battle of science and a battle representing some very high stakes. The question I have is are the CRA crazy enough to continue in the Sugar Is Sugar quest? Although the main stream media has mostly kept out of reporting on this story (think advertising revenue) they will eventually have to weigh in because of viewer pressure. Should the CRA lose this battle, the consequences are dire. Suddenly HFCS is a substance that is in the headlines, people that have never heard of it, suddenly will start reading labels on food products. Ouch!

Simon Barrett

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