Can a lawful product be called a 'Nasty'?

Last week, the Court of Appeal gave a ruling highlighting the risk of using emotive language to describe third party products. Where a product is lawful but considered to be controversial by critics, the use of wording that implies that the product is damaging may give rise to liability under the tort of malicious falsehood. In this case, ASDA has run into difficulties over its description of Ajinomoto's sweetener aspartame.

As a result, businesses should take care when implying that a third party product is harmful, even if the controversial nature of the product is well-documented and the use of the emotive language reflects the concerns of the business' customers. In contrast to claims for defamation, the Court of Appeal considered it unnecessary to ascribe a single meaning to the language complained of. Consequently, the courts will now recognise that a statement can reasonably mean different things to different people. Therefore, you will need to consider the full range of potential meanings of statements describing third party products and decide whether you can justify the most damaging of them.

The facts

Aspartame is a controversial but legal sweetener. Ajinomoto, a leading supplier of aspartame, took action against ASDA in 2008 after the packaging of some of the supermarket's range of 'healthy' foods suggested that aspartame was a 'hidden nasty'. The goods in question were labelled with the slogan "No hidden nasties" and also contained a note which typically read "No artificial colours or flavours and no aspartame".

The supplier complained that the meaning of the labelling was either that aspartame is especially harmful or unhealthy; potentially harmful or unhealthy; or a sweetener that customers concerned for their health would do well to avoid. On this basis, they brought an action for malicious falsehood.

In a preliminary hearing on meaning in 2009, the High Court accepted that some customers would take the labelling to mean that aspartame is potentially harmful or unhealthy. However, the court ruled that a single meaning should be attributed to the wording complained of and that the proper meaning in the circumstances was that the products were for customers who found aspartame objectionable. As a consequence, there was no malicious falsehood and the supplier's claim failed.

However, last week the Court of Appeal ruled that it was unnecessary to ascribe a single meaning to the wording and effectively overturned the High Court's ruling, meaning that the supplier's claim for malicious falsehood against the supermarket will continue. The effect of the Court of Appeal's judgment is to do away with the single meaning rule for the purposes of malicious falsehood actions, meaning that the court will recognise that a statement can reasonably mean different things to different people and decide the case on the basis of a variety of meanings.

To read the full judgment, click here.

Lawyers Niri Shanmuganathan, Justine Wilkie