Asda’s war on aspartame has not only landed it in legal hot water but dented sales as well, according to documents submitted by the retailer in the defamation case brought by aspartame supplier Ajinomoto.
Ajinomoto launched the legal action in May after Asda refused to change the wording on its ‘Good For You’ range, which describes aspartame as a ‘hidden nasty’ along with hydrogenated fat, artificial colours and artificial flavours. It has also banned the use of aspartame in its own-label range. A High Court judge will decide whether Asda’s terminology amounts to malicious falsehood now that the supermarket has finally submitted its defence.
Asda has not, however, attempted to justify the ‘nasty’ phrase on scientific grounds. Instead, say sources close to the case, it has argued that the word is not actually as offensive as Ajinomoto claims.
Its defence documents also contained the startling admission that “consumers generally prefer the sweetening flavour of aspartame to that of [rival high intensity sweetener] sucralose [which has replaced aspartame in Asda’s own-label diet drinks]” and that “in the case of soft drinks, some lines suffered a significant decline in sales because consumers did not like the new [aspartame-free] flavour”
Asda’s decision not to defend its marketing rhetoric on scientific grounds has come as little surprise to many food law experts given that the European Food Safety Authority recently conducted a review of all the available scientific evidence and concluded that aspartame was safe for human consumption.
Ailbhe Fallon, founder of Fallon Currie, an international marketing consultancy that has worked with Ajinomoto for several years, said Asda’s defence was “pretty weak” and did not address the substance of Ajinomoto’s claim.
She added: “Instead of trying to justify calling aspartame ‘nasty’, Asda is now trying to argue that the term is not derogatory. It is basically saying that calling something nasty doesn’t make consumers think it’s bad for you. It is up to the judge to decide but, in my opinion, that’s a pretty weak defence.”
In a writ filed in May, Ajinomoto said: ‘In their natural and ordinary meaning, the words on the packaging ... would have been understood to mean that aspartame is an especially harmful or unhealthy, or potentially harmful or unhealthy, sweetener and is one that consumers concerned for their own health would do well to avoid.’”
This was despite the fact that aspartame was “made from two amino acids identical to those found in eggs, meat, cheese, fish, cereals, fruit and milk”, claimed the firm. After consumption, aspartame is broken down in the gut “into very small quantities of common dietary components so it brings nothing new to the normal diet”, it added.
The case is being closely followed by several firms that have employed similarly emotive rhetoric about additives on their packaging and marketing materials, notably Pret A Manger, which has in the past urged consumers to “avoid hairy chemicals”. These were defined as “obscure chemicals, additives and preservatives ... the nasties we avoid at all costs”
Should Ajinomoto succeed, copywriters could be forced to stop using such emotive language and take a more science-based approach to food marketing, said Fallon. “I think this case has made a lot of food marketers think more carefully already, if for nothing else than the fact that Ajinomoto has shown that it is prepared to take legal action to defend the good name of a safe and legal food ingredient.”