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The competition over America’s sweet tooth is playing out in court, where members of the Corn Refiners Association Inc. are attempting for the second time to dismiss a lawsuit filed by sugar refineries alleging that its advertising touting high fructose corn syrup as no different from sugar is false and misleading. The sugar refineries, which brought in W. Mark Lanier last month, are fighting to hold six defendant companies, all members of the Corn Refiners Association, liable under the U.S. Lanham Act, the federal trademark law. Last fall, a federal judge dismissed the claims against the individual companies, but not the Corn Refiners Association. The companies, which include Archer Daniels Midland Co. and Cargill Inc., have moved again to dismiss the claims against them. Dan Webb, chairman of Winston & Strawn, is lead counsel for the CRA and the individual defendants. On Feb. 6, the sugar companies opposed dismissal. “The pending motion to dismiss is a simple case of trying to have one’s cake and eat it too: Although the Member Companies are alleged to have initiated, funded and controlled the campaign — and reaped exclusively its benefits — they now seek to avoid liability and damages for their essential role in the misconduct,” wrote Adam Fox, partner in the Los Angeles office of Squire Sanders & Dempsey. “Neither law nor equity permits such a result.” Webb offered his take in an e-mailed statement. “We have moved to dismiss the member companies from the case, again, because we believe the Court was correct when it dismissed those companies originally last year,” he wrote. “Companies in any industry should not be dragged into litigation merely because of their membership in trade associations, which is what the plaintiffs here are trying to do.” A hearing on the dismissal motion is scheduled for March 19. Three sugar companies initially filed suit on April 22, 2011, asserting that a CRA advertising campaign makes false and misleading claims that high fructose corn syrup is “natural,” that “sugar is sugar,” that “your body can’t tell the difference” and that it’s “nutritionally the same as table sugar.” The suit cites a “citizen’s petition” that the CRA’s members gave to the U.S. Food and Drug Administration on Sept. 14, 2010, seeking to replace the label “high fructose corn syrup” with “corn sugar” on ingredient labels. The suit originally alleged violations of the Lanham Act and California’s unfair competition law. On Oct. 21, U.S. District Judge Consuelo Marshall in Los Angeles threw out the California claims and dismissed the individual defendants, but allowed the sugar companies to amend their complaint on the Lanham Act claims. She also rejected the CRA’s arguments that its advertising campaign represented an educational effort, not commercial speech, and disagreed with the defense that the statements could not be construed as deceptive to consumers or that they might have materially injured the sugar companies. The amended suit, filed by 10 sugar companies, named the CRA and the same individual defendants: Archer-Daniels; Cargill; Corn Products International Inc.; Roquette America Inc., a division of France’s Roquette Freres; and Tate & Lyle Ingredients Americas Inc., part of Tate & Lyle PLC in the United Kingdom. In the amended suit, the sugar companies sought to link the individual companies to the CRA’s campaign by claiming that two senior executives of each company sit on CRA’s board. As a group, they “dominate” the board, Fox said. “They subject decisions made by the governing body to member companies on approval,” Fox said. “As part of that process, the advertising campaign at the center of this lawsuit, we allege, is one of those things subjected to approval by the member companies themselves. We don’t pull that allegation out of thin air.” Furthermore, he said, the member companies contributed multimillion-dollar annual assessments that paid for the CRA’s advertising campaign. They have repeated statements made in the advertising campaign on their individual corporate Web sites, customer presentations and pricing sheets. The CRA disputed all of that. “Plaintiffs have puffed up these allegations with inconsequential details, such as the names of the members of CRA’s board of directors and the specific sums of money contributed to CRA by the Member Companies, but these cosmetics do not rectify the fundamental defect in Plaintiffs’ allegations,” Gail Standish, a partner in the Los Angeles office of Winston & Strawn, wrote in a motion to dismiss filed on Dec. 16, 2011. On Jan. 24, the plaintiffs added Lanier to their legal team. He and Fox are serving as co-counsel on the case. Lanier did not return a call for comment. The plaintiffs in the suit are: Western Sugar Cooperative; Michigan Sugar Co.; C&H Sugar Co. Inc.; United States Sugar Corp.; American Sugar Refining Inc.; The Amalgamated Sugar Co. LLC; Imperial Sugar Corp.; Minn-Dak Farmers Cooperative; The American Sugar Cane League of the U.S.A. Inc.; and The Sugar Association Inc. This article originally appeared in The National Law Review.

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