The marketers of Splenda have confused consumers and food makers by unfairly distancing the sugar substitute from other artificial sweeteners by claiming it is natural, its chief rival told a jury Tuesday.
The jury will decide whether McNeil Nutritionals has misled consumers by suggesting in its ads and packaging that Splenda contains sugar.
Merisant Co., which makes Equal and NutraSweet, says Splenda contains no sugar and is instead sweetened with a synthetic compound through a complex chemical process. McNeil counters that Merisant is trying to win in a courtroom after losing on store shelves.
Merisant attorneys told jurors in their opening statement Tuesday that McNeil, through its advertising and packaging, misled 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,” Merisant lawyer Gregory LoCascio said.
McNeil initially marketed Splenda with the tagline, “Made from sugar so it tastes like sugar. But it’s not sugar.” After disappointing sales, the company dropped the last sentence and sales skyrocketed, LoCascio said.
McNeil officials desperately fought to keep Splenda from being positioned in the marketplace as an artificial sweetener, a label they felt would be deadly, LoCascio said.
Consumers and companies like Pepsico Inc. flocked to the new product, perceiving it to be healthier, LoCascio said. McNeil made at least $183 million in unfair profits since 2003, he said, while Chicago-based Merisant lost $25 million in sales of its products, which are made with aspartame.
McNeil lawyer Steven Zalesin said Merisant filed suit in 2004 simply because Splenda, introduced about seven years ago, outsells Equal about 4-to-1. American consumers prefer Splenda because it tastes like sugar and is easier to bake with, he said.
“Now, in 2007, Merisant wants to blame its misfortunes on false advertising,” Zalesin said.
Zalesin said no sugar substitute advertises itself as an artificial sweetener, and marketers all use what he called “code” language, such as the term “no-calorie sweetener.”
Neither Equal, made with aspartame, nor Sweet’N Low, made with saccharin, comes from sugar, Zalesin said. Splenda, however, is made from pure cane sugar that is burned off in the manufacturing process and is not found in the final product, he said.
The sweetener is now used in more than 4,000 food and drink products, from Diet Coke to Juicy Fruit gum, Zalesin said.
U.S. District Judge Gene E.K. Pratter’s courtroom on Tuesday was packed with dozens of law clerks and other young attorneys who turned out to see the two sides fight over the billion-dollar industry.
McNeil, which is based in Fort Washington and is a unit of Johnson & Johnson, markets Splenda for its manufacturer, London-based Tate & Lyle PLC.
McNeil is also defending its Splenda advertising claims in a lawsuit filed by the Sugar Association, a group of U.S. sugar manufacturers.
The lawsuit is pending in federal court in Los Angeles and trial is set for November. A federal judge in Delaware last year threw out McNeil’s countersuit against the association, saying the California court should have jurisdiction because the two complaints shared the same fundamental question: whether Splenda is safe and healthy.
The Splenda Web site touts the product’s “important health and lifestyle benefits” and discusses health issues such as child obesity and diabetes.