McNeil and Merisant battle over Splenda in court

By Lorraine Heller

- Last updated on GMT

Related tags: Splenda, Marketing, Sucralose, Sugar substitute

Last week marked the start of a long awaited court case between
sweetener firms McNeil Nutritionals and Merisant, after which a
jury is expected to decide if consumers are being misled by the
marketing strategy for popular sweetener product Splenda.

The trial, which is currently ongoing in the US District Court for the Eastern District of Pennsylvania, is the culmination of a three year battle between the two companies. Merisant, the maker of Equal and NutraSweet, is alleging that McNeil Nutrtitionals and its parent company Johnson & Johnson have purposefully confused consumers over whether Splenda is natural. The marketing slogan for the product - 'Made from sugar so it tastes like sugar'​ - is being used to deliberately make consumers believe that the artificial sweetener contains sugar, according to Merisant. The firm's counsel on Tuesday wrote three questions on a white board in court: Are consumers misled into thinking Splenda is natural? Are consumers misled into thinking Splenda contains sugar? Did McNeil know about or intend this consumer confusion? "The answer to all three questions, we believe, is yes,"​ Merisant spokesperson Jeff Leshay told FoodNavigator-USA.com. "We are confident the jury will find that to be the case as well." ​ McNeil Nutritionals, which is responsible for the sale of Splenda in the US, responded to this publication's inquiry with a prepared statement claiming that its marketing slogans "are true and in no way state or imply that Splenda (…) contains actual sugar or is 'natural'". "The recent claims brought forward by Merisant Company are without merit, and we will continue to vigorously defend our position,"​ it said. Manufactured by UK-based Tate & Lyle, the Splenda brand sucralose ingredient is made using sugar as a base product. The firm's patented process replaces three hydrogenoxygen groups on the sugar molecule with chlorine atoms, which results in a sweetener 600 times more intense that sugar. Because sucralose is not recognized by the body as digestible it has zero calories. One of the key witnesses called upon by Merisant is Anne Davis, who managed the market research activities around Splenda for McNeil. Merisant presented a document authored by Davis, which shows that 40 to 50 percent of respondents in McNeil's consumer research were confused by Splenda's slogan. "This will be a critical part of Merisant's case. Davis said very clearly and shared with McNeil's senior executives that consumers were clearly confused,"​ said Leshay. He added that Merisant will also present evidence during the trial that nutritionists and registered dieticians were misled into believing that Splenda contains sugar and is natural. "This isn't about safety, it's about providing consumers with truthful information,"​ he said. Merisant said that its reason for bringing the case against McNeil is twofold: preventing consumers from being misled, and also providing an "equal playing field"​ for manufacturers of other artificial sweetners. "We've always been very clear that Equal is an artificial sweetener. It's about fairness in business and creating an even playing field." ​ Merisant is asking for $190m in damages and for McNeil to stop using its marketing slogan. The trial is expected to last two to three weeks. McNeil will also be facing another case for its marketing of Splenda, brought by the Sugar Association and due to go to trial in Novemeber. The case follows a long-standing dispute between the company and the trade body, which also claims the slogan used is misleading.

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