Sweet & Nasty: False Advertising Suit over HFCS Grows Increasingly Sour

In April, 2011 the Western Sugar Cooperative and 2 sugar producer/refiner/distributors filed suit against The Corn Refiners Association, Archer-Daniels-Midland and several other corn refiners for false advertising based on the defendants’ attempt to “re-brand” high fructose corn syrup (HFCS) as “corn sugar” (current lawsuit docket here). On May 30, 2012 the US Food & Drug Administration (FDA) ruled that the scientific evidence did not support the corn refiners’ petition to change HFCS to “corn sugar.” The FDA opinion letter stated that the refiners failed to “provide sufficient grounds for the agency to authorize ‘corn sugar’ as an alternate common or usual name for HFCS.”  And yet the case between sugar and corn refiners simmers on.

This fascinates me from a LOHAS (Lifestyles of Health and Sustainability) perspective, since most people I know avoid HFCS. It also intrigues me from a branding law perspective, especially because it involves defending the alleged “re-branding” of something that does not seem to ever have been a brand. As far as I can tell, high fructose corn syrup is and always has been a generic term — the word for the object itself as opposed to a brand of the object. In fact, it’s defined here in the Merriam-Webster dictionary.

I’ve written a fair amount about this case since last year: September 18, 2011; November 15, 2011; February 9, 2012; May 25, 2012 and August 8, 2012. Now, 17 months and 91 docket entries into it and the case remains in the pleading stage. That means it is still at the very beginning. Still in the “he said / she said” phase where allegations fly like corn husks in the wind. Thus far in this case — even at this preliminary stage — much of the “he said / she said” is happening between scientists arguing over the chemical compositions of HFCS and sugar and the physiological effects of each. Pity the jury if this one makes it to trial!

To Sugar’s credit, despite the complexity of the science, its pleadings read like a story beginning with a Prologue before the Facts, Legal Claims and Prayer for Relief. The corn refiners filed their Amended Answer last Friday, September 7, 2012 (Cargill’s here and ADM’s here – the other corn refiner’s Answers and Exhibits are substantially the same to ADM’s), each of which included a counterclaim against the Sugar Association for damages from its allegedly false advertising campaign about the material differences between HFCS and sugar. The sugar processors aren’t the only ones concerned about corn.

The folks at LearnStuff recently cobbled together this this infographic on corn and HFCS. (Watch out LearnStuff folks — even though you cite your sources, at this rate you just might find yourselves on the receiving end of a corny, and expensive, defamation lawsuit!)

Infographic provided by: http://www.learnstuff.com/