The fact that the FDA does not regard ‘corn sugar’ as a suitable alternate name for 'high fructose corn syrup' on food labels will add more weight to a false advertising lawsuit which argues it should not be used in marketing materials either, sugar industry attorney Dan Callister has claimed.
Callister was speaking to FoodNavigator-USA after the Food and Drug Administration (FDA) denied a citizen’s petition filed by the Corn Refiners Association (CRA) in 2010 urging it to recognize 'corn sugar' as an alternate name for high fructose corn syrup (HFCS) on ingredients labels.
CRA: Lawsuit and petition are entirely separate
The CRA argues that the FDA petition decision should have "no bearing" on the false advertising lawsuit launched by sugar refiners/farmers vs corn refiners last year accusing the CRA of misleading people by using ‘corn sugar’ to describe HFCS in ad campaigns.
However, the fact that the FDA rejected the CRA’s petition is clearly relevant to the false advertising case, which “is basically about the same issue”, claimed Callister, an attorney from law firm Squire Sanders who is representing the sugar companies.
Sugar attorney: Technically, the cases are separate, but the issue at stake is the same
He added: “Yes, technically the ongoing litigation is separate to the petition, as the FDA’s jurisdiction is over food labels, and it doesn’t have authority over advertising. But to me it’s very persuasive to hear the federal government say the same thing as us.
“I think that the fact that the FDA came to this conclusion speaks to the fact that a jury will come to the same conclusion [in the false advertising case].”
CRA: FDA decision should have no bearing on the case...
However, CRA president Audrae Erickson said the FDA petition was "separate and distinct from the lawsuit, and the FDA’s decision should have no bearing on the merits of the case".
She added: "Scientific evidence has proven that the human body does not differentiate between one form of sugar and another; nutritionally, sugar from corn is the same as sugar from beet or cane.
"The standards the FDA applies to determine the wording of ingredient labels are entirely different from the standards a judge or jury will use to determine whether one commercial interest can silence another.”
What is the false advertising lawsuit about?
The false advertising lawsuit was filed in April 2011 by Western Sugar Cooperative, Michigan Sugar Company and C & H Sugar Company, after the CRA followed its 2010 petition to the FDA with a high profile ad campaign promoting the 'corn sugar' term.
Western Sugar Cooperative chief executive Inder Mathur said: “If consumers are concerned about your product, then you should improve it or explain its benefits, not try to deceive people about its name or distort scientific facts."
However, the CRA said the term ‘corn sugar’ would provide greater clarity for consumers, many of whom believe - mistakenly - that HFCS is significantly higher in calories, fructose, and sweetness than table sugar (sucrose).
“From a consumer standpoint”, added the CRA, “this lawsuit is about two core issues: Is HFCS a form of sugar that is metabolically the same as sugar from other sources? Does the Corn Refiners Association have a right to communicate this information to the public?”
What happens next?
A court in Los Angeles will shortly set out the terms governing the discovery phase of the trial, said Callister, but he agreed with the CRA that the case still has a long way to go before it gets to trial.
The next development will be a ruling - which could come any day now - on who the defendants are in the case: the CRA or its individual member companies (ADM, Cargill, Corn Products International (now Ingredion), Roquette America, and Tate & Lyle Ingredients Americas).
Click here to read why the FDA rejected the CRA’s petition.
Click here to read why ConAgra has decided to switch back to using HFCS instead of sugar in its Hunt’s ketchup.