The legal dispute between Ajinomoto and Asda over the right to call aspartame 'nasty' has taken a radical new turn following a Court of Appeal judgment effectively overturning last year's High Court ruling.
Ajinomoto - a leading supplier of the sweetener - took legal action against Asda in 2008 accusing it of malicious falsehood after the retailer refused to change the wording on its ‘Good For You' and 'Great Stuff' ranges, which describe aspartame as one of several ‘hidden nasties’.
However, while High Court judge Mr Justice Tugendhat (in July 2009) agreed that some consumers would take the words to mean that aspartame was unhealthy, he also suggested another vaguer meaning and then concluded that this was the only meaning that could be applied. This decision meant that calling aspartame "nasty" would not amount to malicious falsehood.
Asda hailed his decision as a “victory for common sense”, but Ajinomoto immediately lodged an appeal, arguing that it was self-evident that calling aspartame 'nasty' and claiming products which did not contain it were ‘good for you’ would make consumers suspect it could be bad for you.
Both sides claim victory
In the Court of Appeal judgment (published yesterday), lawlords agreed that there were (at least) two possible meanings to the word 'nasty', one of which was potentially damaging, contrary to Judge Tugendhat's conclusion (which settled on a 'single meaning' that was not actionable/damaging).
An Ajinomoto spokeswoman told FoodManufacture.co.uk: “Justice Tugendhat decided that describing aspartame as a "nasty" would be understood by a substantial number of people to mean that aspartame was potentially harmful or unhealthy. He did, however, also find a second, less damaging meaning that was not actionable. He then concluded that the less damaging meaning was the one that counted.
“Today's judgment [at the Court of Appeal] effectively reverses that position. Asda can no longer deny that describing aspartame as a 'nasty' denigrates a safe and beneficial food ingredient.”
Ajinomoto will now proceed with its malicious falsehood case, she added. "This is not the end of the case, just the latest stage. We will continue to pursue our case and defend the reputation of aspartame."
However, Asda told FoodManufacture.co.uk that it would continue to use the term "no nasties" on its own-label products.
A spokeswoman accepted that yesterday's ruling did acknowledge that there were two potential interpretations of 'nasty', but added: "Following this decision, we are pleased that Asda can continue to use "no nasties" on own-label products that are free from artificial colours and flavours, hydrogenated vegetable oils and aspartame."
Safety not the issue
Asda has never attempted to justify its use of the term ‘nasty’ on scientific grounds, or overtly stated that it was unsafe – but has always argued that it was responding to consumer concerns, justified or otherwise.
In an interview about its clean-labelling policies last year, Asda's company nutritionist told FoodManufacture.co.uk: “We’ve never talked about safety with aspartame. If it’s got an E-number then it’s safe, but if the customer is unsure about something, and we can take it out, we will try and take it out.
“The term [‘nasty’] is not to be taken literally. It’s something that’s come up in consumer research.”
The European Food Safety Authority recently conducted a detailed review of all the available scientific evidence and concluded that aspartame was safe for human consumption.
However, Ajinomoto has had to work hard to tackle negative perceptions about the sweetener, which is made from two amino acids. "Aspartame brings nothing new to the diet and is digested naturally by the body", said the spokeswoman.
She also observed that in documents laid before the court, Asda had revealed that "consumers generally prefer the sweetening flavour of aspartame."
The case could have wider implications for firms employing emotive rhetoric about additives in marketing materials, notably Pret A Manger, which last year urged shoppers to “avoid hairy chemicals", which were defined as “obscure chemicals, additives and preservatives ... the nasties we avoid at all costs”.