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Asda claims victory in aspartame ‘nasty’ case

By Jess Halliday , 16-Jul-2009

A High Court judge has found in favour of Asda in its court battle with Ajinomoto over food and beverage ‘no nasties’ labelling, which listed aspartame as an ingredient not used. Ajinomoto plans to appeal.

Ajinomoto launched a malicious falsehood action against the Walmart-owned supermarket in 2008 after the supermarket began labelling its 9000 ‘Good For You’ own label food and soft drink products as containing ‘no hidden nasties’. Packaging was introduced that pledged ‘no artifical colours or flavours, no aspartame, and no hydrogenated vegetable oils’.

According to Ajinomoto, the “natural and ordinary” meaning of the words is that aspartame is “an especially harmful or unhealthy, or potentially harmful or unhealthy, sweetener and is one which consumers concerned for their own health and that of their families would do well to avoid.”

The company said in a statement last year that aspartame is broken down in the digestive system to tiny amounts of common dietary components – and it is therefore “absurd that Asda should refer to aspartame as a 'nasty’”. It turned to legal system to “defend the reputation not only of the ingredient, but also of the many products that are sweetened with aspartame”.

High court judge Mr Justice Tugendhat said yesterday that the wording did not mean that aspartame was potentially harmful or unhealthy, but was trying to convey the message “if you the consumer think that aspartame may be bad for you, or unpleasant to taste or consume, then this product is for you”.

The judge did not call into question the safety of aspartame, saying he has “no reason to doubt its safety”. The European Food Safety Authority (EFSA) has reasserted its view that there is no credible scientific evidence for ill-effects on several occasions, most recently in April this year.

The judgement, published yesterday, followed a preliminary hearing held at the High Court in London on 6 July. Ajinomoto says the hearing’s purpose was to obtain a ruling on what the statements by Asda mean in law, and therefore whether or not they are actionable.

Appeal

The judge gave a three-week window before enforcement of the judgement to give Ajinomoto time to appeal.

A spokesperson told FoodNavigator.com that the Ajinomoto will be appealing.

She said that the judge found two meanings to the term ‘nasties’ – the ‘natural and ordinary’ meaning perceived by Ajinomoto was arguing, and the meaning upon which he settled in his judgement.

The judge agreed that describing aspartame as a ‘nasty’ would be understood by a substantial number of people as meaning that it was potentially harmful or unhealthy; however he also developed his own meaning of the terms, which he arrived at through a series of complex arguments.

“The judge then created a new rule which required that his second meaning was to be preferred. This means that Ajinomoto will need to lodge an appeal to pursue its case.”

Asda has welcomed yesterday’s judgement, however, and said it means “there’s no excuse for other retailers and manufacturers not to follow our lead”.

Calling the judgement “a sweet victory”, chief merchandising officer Darren Blackhurst said: “We’re in the business of listening to our customers and they’ve told us loud and clear that they don’t want unnecessary, artificial additives in their food.”

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