District Court judge Dale Fischer said the long awaited trial, which relates to allegations that McNeil Nutritionals, a subsidiary of Johnson & Johnson, had misleadingly marketed Splenda as a natural product, will commence on 6 January 2009.
The case could bring an end to a long-standing dispute between McNeil and the trade body, which claims that Splenda’s tag line - 'Made from sugar so it tastes like sugar' - is deliberately being used to make consumers believe that the artificial sweetener contains sugar.
The Sugar Association therefore maintains that the claims show a deliberate attempt to misinform consumers into believing that Splenda is a no-calorie natural sugar product.
However, McNeil continues to refute the allegations, claiming that all material supplied to customers regarding its man-made sweetener are not misleading or deceptive.
“Splenda Brand Sweetener (sucralose) is made from a process that begins with sugar,” the company stated. “In fact, 10 tons of sugar are used every day to make Splenda.”
The ingredients maker claims that it promotes the product as a lower calorie alternative to sugar to tap into concerns over increased obesity rates and other health issues.
According to the manufacturer, this distinction has helped the product to become the US’ biggest selling zero calorie sweetener of the last five years.
Sugar industry concerns
The Sugar Association alleges that internal documents from Johnson & Johnson suggest that the company was well aware that its promotional material was causing confusion amongst consumers.
In a statement, the trade body says that the company had already ceased similar campaigns in France, Australia and New Zealand following court action, but continues with these alleged practices on the US market.
Sugar Association attorney Mark Lanier said that the court would rule in favour of the trade body.
An ongoing battle
Whatever January’s verdict, the case will not be the first time the US sugar industry and McNeil Nutritionals have butted heads over Splenda.
In November 2006, the Sugar Association filed a complaint with the nation's Federal Trade Commission (FTC), requesting an investigation into the marketing of Splenda.
Prior to that, McNeil Nutritionals had filed a lawsuit against the Sugar Association, accusing it of false advertising in connection with a website it had established. The site, truthaboutsplenda.com publishes information about the sweetener, which the association claims comes from "many sources, including consumers who feel deceived by Splenda being advertised as tasting like sugar and being a natural product."
But a federal court in Wilmington, Delaware, dismissed the suit, stating that McNeil had no right to maintain an independent action.
McNeil has also come up against resistance from competitor Merisant, which sells the artificial sweeteners Equal and NutraSweet.
The two companies were embroiled in a fierce court battle, again in 2006, which Merisant said was all about providing consumers with accurate information, while also creating an "equal playing field" for manufacturers of other artificial sweeteners.
A settlement agreement was reached in May last year, although no information on the terms of the agreement was released.