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PHILADELPHIA � The makers of Splenda set out to mislead and confuse consumers with an advertising campaign that falsely suggests the product contains sugar and is natural, a lawyer for its chief rival told a federal court jury Tuesday. But Splenda’s lawyer told the 10-member jury that the manufacturer of Equal filed the suit only because Splenda was overtaking it in the marketplace, and that the evidence will show that all of Splenda’s advertising claims are completely true. The trial in Merisant Co. v. McNeil Nutritionals hinges on whether Splenda is misleading consumers with a slogan that says the product is “made from sugar so it tastes like sugar.” Merisant, which makes Equal and NutraSweet, claims in the suit that Splenda contains no sugar and is instead sweetened with a synthetic compound through a complex chemical process. The stakes are high because Merisant is seeking more than $205 million in damages as well as a court order forcing Splenda to change its ads and packaging. But McNeil claims its slogan is true because the key ingredient in Splenda, called sucralose, is made through a process that begins with pure sugar, or sucrose, and then replaces three of eight hydroxyl groupings on the sucrose molecule with three chlorine atoms. In his opening statement Tuesday, Merisant’s lead lawyer, Gregg 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. The truth, LoCascio said, is that Splenda is a synthetic product that is just as “artificial” as any other sugar substitute currently on the market. But 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 of Patterson Belknap Webb & Tyler told the jury that Merisant was well aware of the Splenda ad campaign even before it was launched in 2000, but waited four years before filing suit. By claiming that the ad campaign is false so many years later, Zalesin said, Merisant now claims it is entitled to millions of McNeil’s profits � a figure that would have been much lower if Merisant had filed suit more promptly. The bottom line, Zalesin told the jury, is that Merisant is “asking you to reward its inaction.” The real reason for filing the suit, Zalesin said, is that Splenda now outsells Equal about 4-1. American consumers prefer Splenda because it tastes like sugar and is easier to bake with, he said. “Folks, Equal was going to lose sales to Splenda and Splenda was going to outsell Equal no matter how Splenda was advertised,” Zalesin said. On a large screen, Zalesin projected the chemical compounds at issue in the case, assuring the jury that the chemistry would not be complicated.
The stakes are high because Merisant is seeking more than $205 million in damages as well as a court order forcing Splenda to change its ads and packaging.

First, he showed the jury a sugar molecule. Next to it, he projected a sucralose molecule, explaining that the only differences were three places on the molecule where a hydrogen atom and an oxygen atom had been replaced with a chlorine atom. And while chlorine is most often thought of as the key ingredient in laundry bleach and swimming pool purifiers, Zalesin said it was just another element that also shows up in many of the foods we eat, such as table salt, which is one atom of sodium and one atom of chlorine. Zalesin said that much of the evidence in the trial would come from consumer surveys. “You’re going to see more consumer surveys in this case than you’ve ever seen in your life,” he said. But Zalesin cautioned the jury to be skeptical of those surveys and to focus on the way the questions were framed. The better surveys, he said, ask “open-ended” questions that ask consumers to describe a product or its attributes. But Merisant, he said, will be relying on surveys that used “closed-ended” questions that suggest an answer in trying to show that consumers were confused and believed that Splenda contains sugar or is “natural.” Those same surveys, Zalesin said, showed that some consumers also rated Equal as “more natural” than other products, such as saccharin-based Sweet’N Low. Zalesin said no sugar substitute advertises itself as an “artificial” sweetener, and that 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. But Splenda is made from pure cane sugar that is burned off in the manufacturing process and is not found in the final product, he said. “Let me be clear: Sucralose starts out as pure cane sugar,” Zalesin said, and is then “modified at the atomic level in a way that preserves the taste of sugar but eliminates the calories.” But LoCascio told the jury that the process used to make Splenda could also begin with onions or beans. But McNeil, he said, knew that consumers would not be attracted to a product that had a slogan proclaiming it is “made from onions so it tastes like sugar.” Eastern District of Pennsylvania Judge Gene Pratter’s courtroom 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, Pa., 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. That 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. Shannon P. Duffy is a reporter with The Legal Intelligencer, a Recorder affiliate based in Philadelphia. The Associated Press contributed to this report.

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