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Lawsuit over ‘corn sugar’ can go forward, judge rules

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LOS ANGELES » A federal judge has ruled that a lawsuit seeking to stop the corn industry’s use of the term "corn sugar" for high fructose corn syrup can go forward, a decision that the sugar industry lawyers who brought the suit said Saturday was "very encouraging."

U.S. District Judge Consuelo B. Marshall issued the ruling Friday in Los Angeles, allowing the false advertising suit brought by plaintiffs that include the Western Sugar Cooperative against the Corn Refiners Association to go forward.

"It is something we expected, we’re not in the business of filing meritless or frivolous lawsuits," sugar industry attorney Adam Fox told The Associated Press.

The decision wasn’t entirely a victory for the sugar industry, however. The judge granted a defense motion to drop individual corn companies as defendants, leaving only the trade association, and dismissed a part of the lawsuit claiming that the corn industry violated California law in addition to federal regulations.

Still, Fox said Marshall’s ruling was "very encouraging to us."

Phone and email messages left Saturday night for corn industry representatives were not immediately returned.

Corn refiners have been using "corn sugar" in an attempt to rebrand high fructose corn syrup, the sweetening agent found in most sodas and many processed foods.

The sugar industry says the campaign amounts to false advertising, and there are numerous differences between the white, granular product and the sticky liquid that is high fructose corn syrup.

But lawyers for the corn industry arguing for the dismissal said sugar and high fructose corn syrup are equivalent in how they are metabolized by the body.

They also said the lawsuit was an attempt to stifle a national conversation about the merits of high fructose corn syrup versus sugar. Also, they said educational campaigns from the Corn Refiners Association, which does not directly sell any products, cannot be branded advertising.

But the judge dismissed those claims in Friday’s decision, saying the corn industry’s campaigns "constitute commercial speech" and the industry group is not insulated from federal false advertising regulations simply because its statements relate to a public health issue.

"The statements themselves also clearly are promoting corn syrup to food and beverage purchasers," Marshall wrote.

Fox said the plaintiffs were "a little bit surprised that the defendants would even raise that as a defense, instead of just coming clean about their advertising being advertising."

"Advertising is what it is," he said.

Fox said the judge’s rulings in favor of the corn industry were not major setbacks, pointing out that she allowed room for the sugar side to amend its complaint and have individual corn producers brought back into the lawsuit, and that the state law claims won’t matter in the long run.

"The federal claim that’s being asserted gives us full relief," he said. "It was a belt and suspenders approach. Even if we only succeed on the federal claim, we’re happy with that."

Expert opinion was divided on high fructose corn syrup, with some saying there was no evidence that the sweetener is any worse for the body than sugar, others saying its high levels of fructose can be stored in the liver as fat and trigger gout and hypertension problems.

The corn industry has asked the Food and Drug Administration for permission to use "corn sugar." The FDA’s decision is pending and it has asked the industry not to use the term before it has received regulatory approval.

In an August letter to the FDA, officials from the Corn Refiners Association said they did not believe anyone could be confused by the term, or believe that it referred to anything other than high fructose corn syrup.

"We do not believe that our statements regarding ‘corn sugar’ are false," the letter read, "or that any consumer confusion could result from our use of the term."

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