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SUGAR SUBSTITUTE CASE GOES TO JURY PHILADELPHIA � A federal jury began deliberating Friday in a false-advertising case that could transform the market for sugar substitutes. It’s the Equal vs. Splenda case, or, as it’s known in court papers, Merisant Co. v. McNeil Nutritionals. If Equal gets its way, Splenda will be forced to abandon its slogan that says the product is “made from sugar so it tastes like sugar” and could be hit with a verdict of more than $200 million. The Equal team had reason to celebrate even before the jury started deliberating when news came of a court victory in France. Just hours before Thursday’s closing arguments began, the Commercial Court of Paris issued its nonjury verdict in a similar suit, declaring that the French version of Splenda’s slogan — which translates as “because it comes from sugar, sucralose tastes like sugar” — violates French consumer protection laws. The French court awarded Merisant France 40,000 Euros (about $54,000) in damages and ordered McNeil to remove the claim from all its ads and packaging. The court battle in the United States will be decided by a jury because the issue of whether an advertising campaign is confusing to a substantial number of consumers is legally considered a jury question. Merisant’s lead lawyer, Gregg LoCascio of Kirkland & Ellis, told the jury in closing arguments Thursday that McNeil knew consumers were confused by the slogan, either thinking that Splenda actually contains sugar or that it is natural. Instead of correcting that confusion, LoCascio said, McNeil set out to maximize its profit from the confusion. A television ad that included the tagline “but it’s not sugar” was changed to delete that line, he noted. But in McNeil’s closing argument, attorney Steven Zalesin of Patterson Belknap Webb & Tyler insisted that Splenda’s slogan is literally true because the manufacture of Splenda, known chemically as sucralose, begins with a sugar molecule. Every day, he said, truckloads of sugar arrive at Splenda plants.

The Legal Intelligencer

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