Federal Judge Consuelo Marshall already dismissed in October last year all claims against individual CRA member companies – including ADM, Cargill, Corn Products International, Penford Products, Roquette America, and Tate & Lyle Ingredients Americas – leaving the CRA as the only defendant.
The lawsuit aims to stop corn refiners from claiming that high fructose corn syrup (HFCS) is a natural corn sugar, and the CRA and representatives of the refined sugar industry are expected to be back in court next month.
But the sugar industry’s attorneys claim that CRA members are attempting to evade liability for their role in “the creation and sponsorship” of the CRA’s advertising campaign, which calls HFCS ‘corn sugar’ – a claim the sugar industry says is false advertising.
"The legal strategy of Archer-Daniels-Midland, Cargill and the other manufacturers of HFCS seems to borrow from the false advertising script by trying to paint the lawsuit as something that it is not," said the sugar industry’s lead attorney, Adam Fox of Squire Sanders in Los Angeles. "These companies are trying to run away from the charges against them and the liability that goes with it."
In response, president of the CRA Audrae Erickson said called the refined sugar industry’s latest move “a rehash of the same groundless claims that a federal judge rejected last year”.
FDA petition
The CRA petitioned the Food and Drug Administration (FDA) in September 2010 asking it to allow the term ‘corn sugar’ as an alternative label declaration for HFCS. The trade association has repeatedly stressed that HFCS is not high in fructose, even though that is what the name may suggest. In fact it contains proportions of fructose and glucose that are similar to sucrose.
However, the FDA has yet to make a decision on how to proceed with the petition.
Erickson said: “This case is about the free flow of fact-based information about sugars to Americans. In that regard, it’s important to recognize that the court previously dismissed a portion of the case based on a California law designed to prevent just these kinds of baseless lawsuits.”
“We will defend the case aggressively,” she added. “In fact, we welcome an opportunity to expose the refined sugar industry’s self-serving actions in this decade-long war on sugar made from corn.”
The latest filing from the sugar industry claims that CRA member companies developed a "strategy to escape liability for their roles in the misconduct" and that they seek to "hide behind an inadequately capitalized trade association they control, govern and fund."
The CRA has repeatedly said that it does not consider referring to HFCS as natural and corn sugar to be misleading, but the plaintiffs claim that the corn industry should have waited until the FDA responded to its petition to allow an alternative labeling claim before going ahead with its corn sugar campaign.