Both sides have accused the other of hypocrisy as the increasingly bitter legal dispute between corn and sugar refiners moved into a new phase this week.
In court documents filed in LA on Monday, leading sugar refiners asked a judge to dismiss a counter-claim filed in September by the corn refiners alleging that the sugar industry has been engaged in a “systematic campaign” to vilify HFCS.
Corn industry: Sugar Association articles are ‘literally false'
The counterclaim - accusing the Sugar Association et al of false advertising and commercial disparagement under the Lanham Act - objected to news articles criticizing HFCS published on the association’s website.
In particular, the corn refiners took issue with an article by Dr. John McElligott, a medical doctor and Fellow of the American College of Physicians, alleging that “your body does not recognize HFCS as a sugar so your pancreas does not react with a burst of insulin as it would with sugar or sucrose and put some of it to work”.
This allegation, along with Dr McElligott's other claim - that “HFCS goes to the liver and starts the process that can lead to non-alcoholic fatty disease” - is “literally false”, argued the corn refiners.
Sugar industry: Dr. McElligott’s speech enjoys First Amendment protection
But in its motion to dismiss the complaint, The Sugar Association said Dr McElligott’s article, plus all the others referenced in the lawsuit, are protected under the First Amendment as free speech.
It said: “The counterclaim is premised on core First Amendment communications: two articles originally posted by a medical doctor and a consumer group, and a few press releases, website posts and an op-ed piece.”
Meanwhile, the speech in the news articles in question is “decidedly different” from the speech in the corn refiners’ “lavish” multi-million-dollar corn sugar advertising campaign, which amounts to “classic commercial speech”, claimed the Sugar Association.
CRA: ‘It is remarkable that The Sugar Association has suddenly stumbled upon the principle of free speech’
However, the Corn Refiners Association (CRA) said it smacked of hypocrisy for the sugar industry to talk about its right to free speech given that it had itself tried to curb the CRA’s right to free speech by launching its original false advertising lawsuit.
CRA president Audrae Erickson said: “It is remarkable that The Sugar Association has suddenly stumbled upon the principle of free speech, given how hard they have tried to censor our consumer education program.
“Although The Sugar Association’s original lawsuit explicitly is an attempt to block further consumer education about HFCS, in a sudden reversal, the sugar lobby now is evoking the ‘cherished right’ of free speech in defense of their actions.”
Sugar attorney: ‘This is a perfect example of the pot calling the kettle black’
However, Adam Fox, a partner at law firm Squire Sanders, which is representing the Sugar Association, told FoodNavigator-USA that this was a “perfect example of the pot calling the kettle black”.
The CRA is now accusing the sugar lobby of false advertising under the Lanham Act over its news articles, but had originally tried to argue that its own corn sugar ad campaign was not subject to the same act, he claimed.
“In reality, the CRA is engaging in hypocrisy. They were the ones that first argued that their paid-for ‘corn sugar’ ads should avoid scrutiny under the federal statute that prohibits false advertising… when in fact their corn sugar ad campaign is clearly a sales message masquerading as something else.”
Asked about how the counterclaim by the CRA fit into the overall legal dispute, he said: “In my view the counterclaim is nothing more than a tactical distraction from the underlying lawsuit."
Citizens for Health: The money was contributed, but it is absolutely false to say that this was a case of ‘pay for play’
Asked to respond to claims that the Sugar Association had contributed large sums of money to the consumer group Citizens for Health - which has been critical of HFCS - he said: “We’ve made no secret of the fact [that the association contributed $300,000 to CfH].
“But CfH doesn’t always agree with the sugar industry. It probably disagrees with the industry more than it agrees with it.
“The money was contributed, but it is absolutely false to say that this was a case of ‘pay for play’.”
But the CRA's Erickson countered: "The Sugar Association must consider the American public very gullible if they think for a moment anyone believes that a grant of $300,000 to Citizens for Health has nothing to do with the group's attacks on high fructose corn syrup. It only raises the question, who else have they funded?"
Background to the case
The row between the parties began in 2010 when the CRA petitioned the FDA to recognize ‘com sugar’ as an alternate term for HFCS on the grounds that the name had led many consumers to believe – erroneously – that HFCS contains significantly more fructose than table sugar.
It then followed up with a high-profile media campaign promoting ‘corn sugar’.
However, the move was strongly opposed by sugar refiners and farmers who filed a false advertising lawsuit against leading corn refiners in April 2011 accusing them of deceiving the public.