In 1969, the Archies combined granulated and aqueous forms of fructose and glucose in a bubblegum song called “Sugar, Sugar.”   It topped out at No. 1 in the U.S. Billboard Hot 100 charts.  The lyrics “Sugar / Oh, Honey, Honey / You are my candy girl, and you got me wanting you” lilted through and permeated the AM and FM airwaves.

In 2010, manufacturers of “high fructose corn syrup” (HFCS) sought to break down the FDA regulatory barriers that exist between granulated and aqueous forms of fructose and glucose—but their efforts would be met with much less glamorous success.  By then, HFCS had become a persona non grata among anxious consumers.  Scientific studies issued earlier in the decade had suggested a correlation between its overconsumption and the epidemic of bulging waistlines and type 2 diabetes spreading across the United States.

While those early studies would later be debunked, perceptions actually matter more than concrete reality when it comes to the very personal act of ingesting food.  That act is imbued (and fraught) with emotional and spiritual qualities that can readily override or distort facts.  Just as Morris—the world’s most finicky cat—would not deign to touch anything other than 9-Lives cat food, American consumers began to thumb their noses at food products incorporating HFCS.  While it is a useful and cost-effective sweetener for industrial food processing purposes, it could not rise above its bad rap.

We’d Rather Switch Than Fight

Once upon a time in advertising lore, Tareyton smokers “would rather fight than switch” their cigarette brands.  HFCS did not follow that playbook.  Instead of defending the words, “high fructose corn syrup,” HFCS manufacturers decided to change its product stripes altogether.  Following the age-old adage that if it “looks like a duck, quacks like a duck, it must be a duck,” the Corn Refiners Association (CRA) embarked on a $30 million dollar marketing campaign to convince wary American consumers that “HFCS is corn sugar,” that “HFCS is natural,” and that “sugar is sugar.”

By way of background, HFCS was first produced in Japan and entered the American food supply in the early 1970s.  Its name accurately describes its composition.  Unlike table sugar, which consists of 50% glucose and 50% fructose chemically bonded together, the main form of HFCS included in soft drinks is made from an enzymatic process that blends together 55% fructose and 45% glucose.  The distinction between sugar components being bonded versus blended creates potential implications for human digestion and metabolic fate purposes, but those distinctions appear to have been overplayed in early scientific studies leading to HFCS’s demonization.

Dextrose is Already Corn Sugar

Because the standard identity of food names is regulated under the Food, Drug and Cosmetic Act of 1938 (as amended), the CRA could not simply adopt its new, preferred appellation, corn sugar.  Those words already had an established definition under FDA regulations.  Pursuant to 21 C.F.R. § 168.111(c), “dextrose monohydrate” or “dextrose” can be called “corn sugar.”  Dextrose is a form of glucose “found naturally in animal and plant tissue and derived synthetically from starch.”[1]  Notably, it does not include fructose.

So, the CRA filed a citizen’s petition in with the federal Food and Drug Administration in December 2010 to formally change the name of HFCS to “corn sugar” and to change the definition of “corn sugar” already set forth in the Code of Federal Regulations from being confined to dextrose.

If the CRA’s petition were accepted, the innocuous name corn sugar would join the ranks of other commonly accepted sugar products that Americans are accustomed to and comfortable purchasing, such as (C&H) pure cane sugar, demerara sugar, turbinado sugar, muscovado sugar, confectioner’s sugar and the like.  The detested acronym HFCS would soon fade from America’s collective, but likely short-term food product memory.

The FDA’s Rejection Reasoning

On May 30, 2012, the FDA rejected the CRA’s creative, and now stymied marketing solution for two fairly simple reasons.

First, the FDA’s regulatory approach to sugar and syrups is that “sugar is a solid, dried and crystallized food; whereas syrup is an aqueous solution or liquid food.”  Using the term sugar would suggest to consumers that HFCS is a dried, solid and crystallized sweetener obtained from corn.  FDA regulations make a number of regulatory distinctions between crystalized sugars and syrups (e.g., glucose, maple, sorghum, cane and table syrups).  While their ingredients may be chemically indistinguishable, their method of consumer use varies.  The CRA pointed out some messy inconsistencies in the way aqueous and crystalline forms of sugar are categorized under FDA regulations, but those divergences from the basic norm were insufficient reasons to rename HFCS as corn sugar for the purposes of an FDA standard of food identity.

Second, because the term “corn sugar” already had an accepted definition and standard of identity—dextrose—the FDA was not interested in amending its longstanding regulations.  Even though the CRA was able to demonstrate that consumers do not commonly associate “corn sugar” with dextrose, and that “corn sugar” was seldom used on food labels in lieu of the word “dextrose,” the FDA based its rejection on the fact that the scientific and public websites refer to “corn sugar” as dextrose.  Further the FDA pointed out that those individuals with hereditary fructose intolerance or malabsorption conditions can consume “dextrose/corn sugar,” but could be subjected to medical risks if they consumed HFCS/corn sugar thinking it was really dextrose/corn sugar.

The FDA’s rejection of the CRA’s proposed change in corn sugar nomenclature did not depend or rely on any studies regarding the potential adverse health effects of HFCS consumption.  While there are probably other ways to rehabilitate HFCS’s negative image in the minds of finicky American consumers, the FDA is not lending regulatory credence to those partisan marketing efforts willingly.

[1] See The American Heritage College Dictionary  (3rd Ed. 1997), p. 382.

Photo of Paul D. Swanson Paul D. Swanson

Paul Swanson’s track record speaks for itself: the World Trademark Review 1000 lists Paul as a top individual in the trademark practice, describing him as a “very smart IP litigator who brings decades of courtroom experience to the table.” He is the only…

Paul Swanson’s track record speaks for itself: the World Trademark Review 1000 lists Paul as a top individual in the trademark practice, describing him as a “very smart IP litigator who brings decades of courtroom experience to the table.” He is the only Washington attorney to be awarded Lexology’s 2017 Client Choice Award in the field of trademark law.

Paul’s food/intellectual property law practice provides astute counsel regarding the intellectual property foundations of your food-related business ventures. His guidance is especially vital for agribusiness clients with intellectual property rights in formerly unbranded fresh fruit and vegetable produce. As the industry has shown, the reputation and goodwill of agribusinesses and foodservice companies is bound up in the quality of their products and services and the brand recognition generated through the diligent efforts of company employees and their predecessors.

Having worked on cases that now authoritatively control legal outcomes in matters of agribusiness commerce, Paul has a deep understanding of the complex legal issues faced by his clients. He regularly speaks on and writes about intellectual property issues and is principal contributor to the firm’s “Earth and Table” Law Reporter blog, devoted to analyzing the interplay between intellectual property and food commerce.

Paul is a Former Chair of the Washington State Bar Association’s Intellectual Property Section. He also chaired a WSBA/IP trademark committee whose work significantly revised Washington trademark law, and is a member of the International Association of Culinary Professionals (IACP).

Paul served as a Board Member of the Neighborhood Farmers Market Alliance, a community-based, nonprofit organization that operates seven farmer/food-only markets in Seattle neighborhoods. His article regarding the history and legal status of organic and natural food labels entitled “We Are What We Eat” appears on the website of Gastronomica: The Journal of Food and Culture.