Aspartame maker Ajinomoto sued for malicious falsehood over Asda’s catchphrase for its 2007 campaign to remove all artificial colours, flavours or flavour enhancers and hydrogenated fat from its own label food and soft drinks. In the latest skirmish in the litigation, the High Court wrestled with the question of whether the real meaning of “no hidden nasties” should be decided in a preliminary trial. Mark Smith savours the judgment.
Who: Ajinomoto Sweeteners Europe SAS and Asda Stores Ltd
When: 8 April 2009
Where: High Court
Law stated as at: 1 June 2009
Ajinomoto Sweeteners ("Ajinomoto") has succeeded in getting a preliminary trial on the issue of the meaning of words used on packaging and in various other contexts by the supermarket chain Asda in relation to aspartame, a sweetener manufactured by Ajinomoto, which Ajinomoto alleges amount to malicious falsehood.
Ajinomoto originally decided to take legal action against Asda following the supermarket's refusal to change the wording featured on a wide range of its own-label products, which describes aspartame, a sweetener manufactured by Ajinomoto, and various other additives such as artificial colours and flavours, as being "hidden nasties".
Ajinomoto claims that the natural and ordinary meaning of the words used by Asda in relation to aspartame is that aspartame is an especially harmful or unhealthy, or potentially harmful or unhealthy, sweetener, and that consequently it is one which consumers concerned for their own health and that of their families should avoid, either completely or in the quantities likely to be found in soft drinks and other products.
The burden of proving the falsity of the words in whatever meaning they are found to bear lies on the claimant in actions for malicious falsehood. If Ajinomoto failed to establish that the words complained of bear the natural and ordinary meaning alleged, its claim would fail. On that basis, Ajinomoto argued that a preliminary trial on the issue of meaning could save substantial costs and urged the court to exercise its general power of case management and direct a separate trial of the issue of meaning in accordance with CPR Part 3.1(2)(i). Asda disagreed, taking the view that far from saving costs, a preliminary trial would be to increase costs because two trials instead of one would or might be necessary.
Costs to be saved by separate trial on "slam dunk" point
The court held that the natural and ordinary meaning of the words used by Asda in reference to aspartame was suitable for trial as a preliminary issue, as it would assist the parties in knowing where they stood and could result in a considerable saving of costs.
The judge described the issue of meaning as a self-contained or "slam dunk" point, and pointed out that if Ajinomoto's meaning is rejected, the case will come to an end. If it is upheld then the court's decision will set the parameters within which the issue of falsity will have to be determined, and might also assist the parties in relation to their positions on malice. He emphasised that any trial on the safety of aspartame will be prolonged and hugely expensive to both parties, and that separating the issue of meaning might avoid or reduce this. Furthermore, having a separate preliminary trial on the issue of meaning is commonly used in defamation cases, which share obvious similarities with malicious falsehood claims.
The preliminary hearing should take place before the end of July 2009.
Why this matters:
The decision indicates that seeking such a preliminary trial on the issue of meaning may be a useful tactic to use in future malicious falsehood cases. More generally it provides a useful reminder that when deciding on whether or not to hold a preliminary trial into an issue the court will consider the practical consequences, particularly the matter of costs.
Unfortunately for Ajinomoto, they did not have the option of taking direct action against Asda under the Business Protection From Misleading Marketing Regulations 2008, although it is arguable that they could have tried to persuade the OFT or one of the other enforcing authorities to do so. The direct action option would have been available in certain other EU jurisdictions under their implementation of the Unfair Commercial Practices Directive 2005/29/EC, and would have had the obvious advantage that it would not be necessary for Ajinomoto to prove malice.
However, Ajinomoto will undoubtedly be delighted with a recent opinion of the European Food Safety Authority, adopted in March 2009, which rejected a study from the European Ramazzini Foundation published in 2007, which claimed that aspartame poses a cancer risk.
The eyes of the food industry will certainly remain firmly fixed on the case, which is destined to be a landmark decision with regard to the use of additives.