Sugar v Corn Syrup: Bitter False Advertising Battle Plays Out in the Press

Posted by | May 25, 2012 | Disputes | 2 Comments

There’s nothing sweet about false advertising litigation.  Unless of course, you are on the winning legal team, in which case victory is not only sweet but also very, very, very lucrative.  Just ask Mark Lanier, who recently was named “2012 Top Class Action Attorney” by U.S. News and World Report, and also serves as counsel to the Sugar Association.

Sugar is an important part of American culture.  I should know, having been addicted to it for most of my life (I’m on the slow road to recovery.)

Mary Poppins taught us that a spoonful of sugar not only makes the medicine go down, but in the most delightful way . . .

So then, what does a spoonful of high fructose corn syrup (HFCS) do, besides give us diabetes?

Well, that depends in part on whom & what you believe.

There’s a battle raging between the Sugar Association and the Corn Refiners Association, about which I previously wrote on September 18, 2011 and on November 15, 2011 and again on February 9, 2012.  Sugar addiction aside, the case is fascinating for other reasons as well, primarily because it is a prime example of a down and dirty false advertising dispute, in which each side essentially accuses the other of lying.

The short story is that back in April 2011, the Sugar Association and several sugar companies sued the Corn Refiners Association and several corn refiners for false advertising and unfair competition under federal law, as well as for violation of California Business and Professions Code Section 17200.  The suit claimed that the re-branding of HFCS as “corn sugar” was unfairly deceptive.

How one re-brands a generic term is a complete mystery to me; I always thought something first had to be a brand before it could be re-branded.  Of course, that’s the point the Sugar Association is hoping to make.

The court dismissed the Plaintiff’s case against the corporate members of the Corn Refiners Association with leave to amend and struck the unfair competition claim on October 21, 2011.  Plaintiffs then filed a Second Amended Complaint in November 2011, limiting their claim to false advertising under the federal Lanham Act.  In response, some, but not all, of the defendants filed a Motion to Dismiss in December 2011, which remains to be ruled on by the court.

One year in and 74 docket entries later and the sugar side recognizes it has a hard row to hoe against the corn refiners who have continued with their “corn sugar” marketing campaign:

Fed up, the Sugar Association issued a press release on PR Newswire yesterday morning,:

[framed_box]

Enough Is Enough: There’s Only One Sugar… And It’s Not High-Fructose Corn Syrup (via PR Newswire)
WASHINGTON, May 24, 2012 /PRNewswire/ — In recent weeks, there has been a rash of inaccurate reports about all-natural sugar. These reports have continually misrepresented the facts surrounding several scientific studies, overlooked biological differences between all-natural sugar and man-made sweeteners…


 

[/framed_box] To which the Corn Refiners Association promptly responded: [framed_box]

WASHINGTON, May 24, 2012 /PRNewswire-USNewswire/ — When you don’t have the facts, generate confusion.  That is apparently the Sugar Association’s game plan, as today through yet another press release they continued to grasp for a rationale as to why anyone should support their self-serving lawsuit…


[/framed_box]

There sure is a lot of mud-slinging going on in these fields!  This case is likely to go on for a very long time and I doubt it will grow any more amicable.

Both of these parties are trying their case in the court of public opinion.  While that’s a little risky cause it could annoy the judge, winning over consumers is equally or more important than winning the federal court case.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

2 Comments

  • I’d noticed the battle just playing out over television and film documentaries (as well as being waged with products on both sides) but I didn’t realize there was so much litigation and so many nasty press releases. Whatever happens, it’s going to be both ugly AND interesting to follow.

    • Lara says:

      Sorry for my delayed response, your comment went to spam :( Thanks for reading and commenting on my post, Fred. Nasty and interesting – makes for great blog fodder!

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