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Asda wins reprieve over damaging sweetener claim

17 June 2010

Asda has won a temporary reprieve in a claim brought by one of the world’s largest Aspartame producers who accused the supermarket chain of misleading consumers about the characteristics of the sweetener.

In a unanimous ruling, the Court of Appeal has held in Ajinomoto Sweeteners Europe v Asda Stores [2010] EWCA Civ 609 that the single meaning rule applicable in libel cases did not apply to claims for malicious falsehood.

Bringing the original claim, Ajinomoto said that Asda’s labelling of its own-brand health food suggested that aspartame was harmful, which amounted to malicious falsehood.

Packaging for some of the supermarket giant’s products said “no hidden nasties” together with “no artificial colours or flavours and no aspartame”.

At first instance, Mr Justice Tugendhat considered that, under the single meaning rule, ordinary consumers would normally read this to mean that “these foods were for customers who found aspartame objectionable”.

On appeal, however, Lord Justice Sedley said that “the single meaning rule is not to be imported in the tort of malicious falsehood”.

Agreeing with Andrew Caldecott QC, for Asda, the judge said both libel and malicious falsehood were not dissimilar in that both concerned the protection of reputation.

But, Sedley LJ said they were “not so close as to be variants of a single tort”, and consequently the single meaning rule could not be imported from libel into malicious falsehood.

It is now open to Ajinomoto to return to the High Court and argue that a significant number of consumers would read the words as meaning that “there is a risk that aspartame is harmful and unhealthy”.

To win, the company would also need to prove malice and falsity.

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