Made from Sugar
Merisant Co. v. McNeil Nutritionals, currently being tried in the E.D. Pa, may be the sweetest courtroom battle ever waged. Merisant, the maker of Nutrisweet and Equal has sued McNeil, the manufacturer of Splenda. The issue in the case is straightforward. McNeil advertises Splenda as being "Made from Sugar So it Tastes Like Sugar." Merisant claims that McNeil's advertising is fraudulent because Splenda contains no sugar at all. McNeil counters that its claim "Made from Sugar" does not mean, and cannot be reasonably interpreted as meaning, "Made of Sugar." Law.com reports on the trial so far:
In his opening statement Tuesday, Merisant's lead lawyer, Gregg F. LoCascio of Kirkland & Ellis in Washington, D.C., told the jury that internal corporate memos from McNeil will prove that the company knew that its advertising and packaging was misleading consumers into thinking that Splenda was safer and healthier than other artificial sweeteners.
"McNeil documents show that they knew consumers were confused and they didn't do anything to stop it," LoCascio said.
LoCascio said McNeil initially marketed Splenda with the tagline, "Made from sugar so it tastes like sugar. But it's not sugar."
But after disappointing sales, the company dropped the last sentence and sales skyrocketed, LoCascio said.
LoCascio promised the jury that, through the evidence he will present, "you will have the benefit of going behind the scenes" at McNeil by seeing internal e-mails and documents from company meetings.
That evidence, he said, will show that McNeil was not only aware of the consumer confusion it was causing, but that it "boasted" about it.
At stake is in excess of $200 million in damages, principally consisting of profits Merisant attributes to McNeil's allegedly fraudulent marketing strategy. McNeil, of course, argues that the "Made From Sugar So It Tastes Like Sugar" campaign is not fraudulent and, in any event, Merisant should have sued long ago. A similar action, brought by the Sugar Association, is pending in Los Angeles.
Rebecca Tushnet has a comprehaensive preview that details the pre-trial process.
