Sugar-corn syrup court fight reveals inner workings

Sugar and high-fructose corn syrup are the top sweeteners when it comes to satisfying American's sweet tooth, but an ongoing court battle between the two industries is filled with tart allegations about money trails and smear campaigns.

More than 700,000 pages of recently released previously confidential documents obtained by The Palm Beach Post provide an inside look at both industries. They've come to light during proceedings in a federal lawsuit filed in 2011 in Los Angeles by the sugar industry against high-fructose corn syrup producers alleging misleading advertising.

Led by the Western Sugar Cooperative, the sugar companies alleged that the Corn Refiners Association and its agribusiness members such as Archer-Daniels-Midland, Cargill Inc., and Tate & Lyle ran a deceptive $50 million ad campaign called "Sweet Surprise." The campaign that began in 2008 told consumers that "sugar is sugar" and that "your body cannot tell the difference between sugar and high-fructose corn syrup."

A pre-trial hearing is set for November, but no trial date has been scheduled.

The sugar industry was especially outraged by the high-fructose corn syrup industry asking the U.S. Food and Drug Administration to change HFCS's name to "corn sugar." The FDA denied that petition in May 2012, saying that corn sugar is a term used for dextrose for more than 30 years and that consumers would be confused by a liquid product being called sugar.

In September 2012, the HFCS industry filed a counter-suit alleging that the sugar folks waged "a spin and smear conspiracy" against HFCS that began as early as 2003. Its goal was to persuade consumers that HFCS was not natural and should be avoided and that sugar-containing products are superior.

The documents, such as memos from The Sugar Association executive director Andy Briscoe to its board, make it clear that the fight for market share is a big one and both sides are seeking to influence Americans' eating habits.

The sugar industry's attorneys assert in court filings that the corn refiners are trying to conceal information from the public. For example, they allege that corn refiners have paid researchers James Rippe and John S. White more than $10 million to advocate on their behalf.

The corn refiners counter that in a Dec. 20 filing: "If anything, it is the plaintiffs who have engaged in a spin-and-smear conspiracy to scare the public into consuming sugar over HFCS."

They point to internal Sugar Association memos where officials admitted a study about HFCS in soft drinks was flawed, but then used it and other discredited studies to publicly attack HFCS.

White and Rippe have never hidden their connection to the Corn Refiners Association, CRA attorneys state in court filings.

Among the documents now public is a Sept. 13, 2004, memo from sugar's Briscoe to its board. It states that in October 2003 the board approved as its No. 1 objective the replacement of high-fructose corn syrup with sugar in the food and beverage industry.

That same memo also states, "We are not doing research to denigrate HFCS, but are doing research to verify the nutritional safety of sugar."

Revealing from the corn refiners is an email with the subject line "Marketing Ploy." Archer-Daniels-Midland spokesman David Weintraub wrote, "I think we're unnecessarily asking for trouble by using the 'natural' language." A few months later in another email, he called the name change "dishonest and sneaky."

Weintraub also questioned how something that comes from a "chemical factory" could be natural. He then said that while the "claim is true," that doesn't mean the corn refiners have to say it.

Around the same time, Tate & Lyle executive Matthew Wineinger cautioned that "two new TV ads" calling HFCS "corn sugar" may raise legal "concerns."

Adam Fox, attorney for The Sugar Association and other plaintiffs, said the corn refiners had sought to keep all the documents confidential - then during a Jan. 23 hearing voluntarily removed the confidentiality designation on a "a bunch of documents," but maintained it on others.

The judge ordered the corn refiners to re-evaluate the documents as to which should be confidential, Fox said.

"What we found interesting is ... they had no problem sharing the information with competitors - they were sharing them with us - they just did not want the public to know," Fox said.

"Basically the documents show that they thought using the name corn sugar was sneaky and dishonest and they were asking for trouble," Fox said. "Other documents show they were aware of scientific research to undercut their abilities to try to show that sugar and HFCS are the same."

What's at stake? A $77 billion global industry where each wants to control as large a share as possible.

"They are trying to have their cake and eat it too," Fox said of the HFCS industry and its attorneys.

The corn refiners have been giving money to such advocacy groups as Consumer Freedom who have been championing HFCS or saying it was equivalent to sugar, but meanwhile the corn group has been hammering the sugar industry over "secret funding" to groups such as Citizens for Health, Fox said.

"They have been hiding fact that they paid tens of millions of dollars to scientists to write papers saying high fructose corn syrup and sugar are the same. At the same time they gave a couple hundred thousand to an advocacy group," Fox said.

The corn refiners are pointing to the sugar industry's memos.

In an April 9, 2004, two-page memo to his board, sugar's Briscoe states all of its "management by objectives" have been moved forward.

"HFCS - we have reviewed all the science, funded two new research projects, fed the media with the science to help fuel the public concern and debate on HFCS, we have met face-to-face with Coke and Pepsi representatives promoting all natural sugar, and we have developed a website to promote sugar-based regional bottlers and other products," Briscoe wrote.

Stephen D'Amore, a Chicago attorney representing the corn refiners, said that the sugar industry has sought to attack HFCS while the corn refiners were simply trying to educate consumers. The corn industry's emails merely demonstrate that there was a healthy debate over the "corn sugar" campaign, he said.

"The corn refiners' mission all along has been to educate consumers about the science behind sweeteners and the role that those sweeteners play in people's diets and in the fight against obesity," D'Amore said.

SUGAR VS. HIGH-FRUCTOSE CORN SYRUP:

The sugar industry sued the HFCS producers over alleged misleading advertising in 2011.

The corn refining industry later countersued, claiming the sugar companies sought to defame HFCS.

The plaintiffs:

-Western Sugar Cooperative

-Michigan Sugar Co.

-C & H Sugar Co. Inc.

-U.S. Sugar Corp.

-American Sugar Refining Inc. (Now ASR Group, owned by Florida Crystals Corp. and the Sugar Cane Growers Cooperative of Florida)

-The Amalgamated Sugar Co. LLC

-Imperial Sugar Co.

-Minn-Dak Farmers Cooperative

-The American Sugar Cane League U.S.A. Inc.

-The Sugar Association Inc.

Defendants:

-Corn Refiners Association Inc.

-Archer-Daniels-Midland Co.

-Cargill Inc.,

-Corn Products International Inc.

-Roquette America Inc.

-Tate & Lyle Ingredients Americas Inc.

What's at stake?

The global market for sugar and sweeteners in 2011 was nearly $99.1 billion and dropped significantly in 2012 to about $77.5 billion. In this market, sugar holds the majority share, comprising an 83 to 85 percent share.

Sugar consumption is 66 pounds per capita in the U.S. High-fructose corn syrup, at 46 pounds per capita, is consumed primarily in soft drinks.

SOURCES: BCC Research, Wellesley, Mass.; U.S. Department of Agriculture

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