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Sugar industry must be held to account for its false statements about HFCS, argue corn refiners

By Elaine WATSON , 12-Dec-2012

In the latest twist in their bitter legal dispute, corn refiners have accused sugar refiners of “seeking to evade liability for the false and misleading statements of their trade association [The Sugar Association]” about high fructose corn syrup (HFCS).

The Sugar Association argues that HFCS is metabolized differently than sugar and plays a unique role in obesity and type 2 diabetes, and recently ran a series of articles on its website from third parties supporting this argument.

However, in a counterclaim filed in September as part of the ongoing legal dispute over HFCS, the CRA said there is no credible scientific evidence to support these arguments and accused the Sugar Association et al of false advertising and commercial disparagement under the Lanham Act, and of conducting a “systematic campaign” to vilify HFCS.

But in its motion to dismiss the counterclaim, The Sugar Association said articles disparaging HFCS on its website are protected under the First Amendment and do not constitute commercial speech under the Lanham Act.

Sugar refiners are ‘seeking to evade liability for the false and misleading statements of their trade association’

The Sugar Association argues that articles published on its website by third parties are protected as free speech under the First Amendment

However, in court documents filed on Monday, leading corn refiners argued that “The Sugar Association’s speech is commercial because, in its own words, it ‘is, quite literally, on a mission to educate consumers and promote the consumption of sugar’.”

They also argue that comments by third parties quoted on the Sugar Association website including Dr. John McElligott (who claimed “HFCS goes to the liver and starts the process that can lead to non-alcoholic fatty disease”) were republished for a commercial purpose, which triggers liability under the Lanham Act.

Meanwhile, Dr McElligott’s rights are not affected by this case, as they are not suing him or other third parties, but are instead targeting the Sugar Association for republishing his articles for “promotional” purposes to support its case against HFCS.

“In seeking to evade liability for the false and misleading statements of their trade association, Plaintiffs are now suddenly, and insincerely, championing principles of free speech”, claimed the corn refiners.

“Republishing and promoting false or misleading third-party statements is plainly actionable under the Lanham Act.”

The Sugar Association’s campaign ignores the established science

They add: “The Sugar Association’s campaign ignores the established science, and instead falsely disseminates to the world that HFCS and processed sugar are not nutritionally equivalent, and that processed sugar is actually healthier and safer than HFCS.”

“Having brought on this censorship lawsuit, the sugar industry must be accountable for its own false statements.”

Sugar Association: Growing body of research supports the conclusion that the differences between HFCS and sugar have important health implications

However, Adam Fox, a partner at law firm Squire Sanders, which is representing the Sugar Association, told FoodNavigator-USA that the corn refiners' counterclaim was just a diversionary tactic in the broader legal dispute.

He said: "The papers filed by ADM, Cargill and the other corn processors are consistent with their tactical effort to divert attention from their multimillion dollar campaign advertising high fructose corn syrup as natural, as 'corn sugar' and claiming that 'your body can’t tell the difference' between it and table sugar. 

"They want to change the subject because the Court presiding over the case has already ruled that the plaintiff sugar farmers have 'a reasonable probability of success on their argument that the [corn processors’] statements are false'.

They want to stifle a legitimate public discussion about HFCS

He added: "They want to change the subject because the FDA rejected their petition to rename HFCS as corn sugar...

"They want to change the subject because a growing body of scientific research supports the conclusion that the irrefutable molecular differences between HFCS and natural sugar have important health implications, including a potential role of HFCS in type 2 diabetes. 

"Their effort to stifle a legitimate public discussion about HFCS should only draw more skepticism about the questionable commercial advertising they have pulled from the airways since failing to dismiss the lawsuit against them."

CRA: Several independent scientists have highlighted significant flaws in HFCS diabetes study

However, Corn Refiners Association president Audrae Erickson took issue with Fox's interpretation.

She added: "The attorney for The Sugar Association is misquoting in a misleading fashion from a court ruling that actually went against his client, in which the court ruled against the sugar industry, finding that they failed to present even the minimum threshold of evidence needed to save their state law claim, which the court struck as a 'SLAPP suit ' [Strategic Lawsuit Against Public Participation - a meritless lawsuit intended to silence or intimidate opponents by burdening them with the cost of a lengthy legal defense]."

As for Fox's reference to an alleged link between HFCS consumption and type-2 diabetes, she added: "There is widespread agreement among scientists and medical doctors that HFCS and sucrose (table sugar) are nutritionally equivalent. 

"In fact, earlier this month, the FDA confirmed that it is unaware of any evidence of a difference in the safety of HFCS in foods and sucrose (table sugar) in foods."

Background to the case

HFCS 55, which is used in soft drinks, contains 55% fructose with the balance made up mostly by glucose; while HFCS 42, which is used in foods, contains about 42% fructose with the balance mostly comprising glucose. Table sugar (sucrose) contains 50:50 glucose and fructose.

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.

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