Several organizations that represent farmers and refiners of cane sugar (“Sugar Producers”) recently filed a false advertising lawsuit against several organizations that represent corn refiners and producers of high fructose corn syrup (“HFCS Producers”) in the US District Court for the Central District of California. The Sugar Producers allege that the HFCS Producers have disseminated advertisements likening high fructose corn syrup to sugar despite the fact that these claims are untrue. The HFCS Producers filed a motion to dismiss, arguing that they have done nothing wrong.

High fructose corn syrup has come under a lot of fire in recent years due to allegations that it is unhealthy and is not properly processed by the body. It is created through a process of refining corn. The substance is common in many daily products such as sodas and candy. There does not, however, appear to be conclusive evidence stating that it is far more harmful than table sugar. Despite this, many producers of snacks and other foods have stopped using it and have begun to make claims on products ranging from ketchup to juice that their brand is made with “no high fructose corn syrup” in hopes of attracting health-conscious consumers.

The HFCS Producers began an ad campaign calling such nutrition concerns into question. In the campaign, commercials and print advertisements were created that include claims such as “sugar is sugar,” “your body can’t tell the difference,” and high fructose corn syrup is “nutritionally the same as table sugar.” The claims, often referred to as “parity claims,” are targeted to consumers in the hopes of convincing them that one sugar is the same as another and that they should not shy away from high fructose corn syrup.

In its complaint, the Sugar Producers take issue with such parity claims. The Sugar Producers also cite to the HFCS Producers’ petition to the Food & Drug Administration (FDA) to permit them to refer to high fructose corn syrup as “corn sugar.” And, before receiving FDA approval, HFCS Producers began using the term “corn sugar” in some advertisements and pricing sheets for food ingredient customers. Based on these actions, the Sugar Producers initiated the present action, alleging violations of the federal Lanham Act and California’s unfair competition law. Essentially, the Sugar Producers want the court to rule that cane sugar is not the same as high fructose corn syrup and to cease the HFCS Producers’ advertising campaign.

In their motion to dismiss, the HFCS Producers argue that the Sugar Producers’ complaint is an attempt to cut off the FDA review and that such an attempt should not be permitted. They also argue, among other things, that there is no Lanham Act violation as the HFCS Producers’ commercials are not selling products, but are instead educational. Additionally, the defendants argue that the term “corn sugar” is accurate as high fructose corn syrup is, in fact, a sugar made from corn. One concern, however, is that there is already a product called “corn sugar” that is produced in a manner slightly different from high fructose corn syrup and contains no fructose. The FDA may have the final say on use of the term.

This case is particularly interesting because neither side argues that a lot of sugar—in any form—is a good thing. It is just that the HFCS Producers would like to state that consumption of high fructose corn syrup is “just as bad” or “no different” than consumption of products containing table sugar. Advertisers should be aware of this case as it is a good example of the issues that may arise where parity claims are used to tout the benefits of or raise awareness about a product. Companies may not take kindly to the use of their product in advertisements for competitors.

Arent Fox is continuing to monitor this case and all advertising-related issues. Please contact the attorneys listed next to the article with questions.