"Wow, you don’t care what the kids eat, huh?"
So begins a now-infamous commercial touting the relative safety of high-fructose corn syrup. At the time, manufacturers were trying to rebrand it as "corn sugar," an effort that included a series of ads claiming, "Whether it’s corn sugar or cane sugar, your body can’t tell the difference. Sugar is sugar." The FDA rejected the name change in 2012, but the damage had already been done, according to sugar manufacturers. Consumers were confused about the distinction between the two products, they said, which hurt sales of table sugar, typically derived from cane and beets.
Both sides are finally getting their day — or, let’s be honest, probably years — in court, but here’s what you need to know about the repercussions the case could have for the advertising industry.
1. The ads at the center of the suit were created by DDB Chicago, which no longer works with the client, the Corn Refiners Association.
In fact, no one who worked on the CRA campaign is still at DDB, according to sources within the company and sources close to the CRA, and no one at DDB wanted to speak about the litigation or the campaign. But there was substantial money involved, according to a New York Times article cited in the lawsuit: $30 million between 2008 and 2010, which garnered over a billion impressions.
2. DDB is off the hook.
The agency isn’t named as a defendant in the case, and the plaintiffs don’t blame them for the ads they created. "We've got the ad men saying that after they deal with their client, the corn refiners, they have to take a shower because they feel so dirty," Mark Lanier, attorney for the sugar industry, told the Associated Press. "It tells you that this was not an ad agency gone amok. This was a client pushing an ad agency amok."
But no one is replacing DDB. The CRA hasn’t admitted any wrongdoing, but it’s no longer advertising, according to a source that works with them, and they’re not working with an agency right now.
3. Ad agencies are rarely held responsible for "false" advertising they produce on behalf of a client, but it’s not unprecedented.
"If the ad agency actively participates in making the ad and knows or has reason to know of its falsity, the agency can be held liable under the Lanham Act, the federal law that allows private parties to sue for false advertising," said Rebecca Tushnet, professor of law at Georgetown University, where she teaches intellectual property, advertising law and First Amendment law.
While that’s the act the sugar manufacturers cite in the suit against the corn refiners, they chose not to file charges against DDB. Sugar lawyer Lanier’s comments indicate they aren’t holding the agency accountable, but there’s no way to know why they chose not to pursue charges.
"It’s more likely for the Federal Trade Commission to do that than a private plaintiff, because the FTC is concerned with sending a message to ad agencies in general that they have obligations to ensure they aren’t participating in making unsubstantiated claims," Tushnet said.
4. You can’t sue me — I’m suing you!
Most false advertising cases are resolved before becoming a lawsuit, but there’s plenty of vitriol between these two parties. Manufacturers of high fructose corn syrup are countersuing the sugar manufacturers for $530 million. They claim the sugar industry implemented a campaign to demonize high fructose corn syrup, comparing it to "crack cocaine," as sales of sugar flagged. Fears about the effects of HFCS led several prominent brands like Hunt’s to switch to cane sugar and advertise their products as free of HFCS. But powerhouse brands like sodas show no signs of abandoning the product, despite a few forays into varieties produced with cane sugar.
For its part, sugar is placing the blame for American obesity on HFCS’s doorstep, stating in the suit: "In recent years, scientists and other observers noted that this dramatic growth in the use of HFCS, which increased by over 1,000% between 1970 and 1990, bears a strong temporal relationship to the growth in American obesity." Expect this literal food fight to act as a proxy for the battle over the American sweet tooth and its buying power.
5. Truth is relative.
Both sides will be lining up scientists and expert witnesses to testify about molecular configurations of simple carbohydrates and the metabolism of sucrose, fructose and other sugars. Most scientists do seem to agree that the body processes HFCS the same as or similarly to sugar. "
Sugar and high-fructose corn syrup are nutritionally the same," reads a 2010 statement from Michael F. Jacobson, executive director of the Center for Science in the Public Interest. Of course, nutrition experts also go on to say that both products should be used in moderation, if at all, and that current rates of consumption are too high.
But it won’t be scientists or public health professionals deciding whether the CRA falsely advertised its product. This is a jury trial. Ad agencies take note: having one scientific advisor, or even several, working on a campaign may not be enough if your competitors have even more of them.
6. But all that really matters is the money.
After the scientists, expect to see economists called to the stand. "In order to get damages," Tushnet said, "the plaintiffs would either have to show intentional false advertising or would have to provide evidence, usually from an economist expert, that their sales had been affected by the false advertising, as opposed to other factors that might have affected sales." Sugar sales have been dropping since the introduction of HFCS in the 1970s, so it might be difficult to tie a loss in sales to the specific ads in question, which only ran for two years.
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