Food products – Justice – Malicious falsehood – Aspartame

Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd: CA (Civ Div) (Lords Justice Sedley, Rimer, Sir Scott Baker): 2 June 2010

The appellant company (C) appealed against a decision on a preliminary issue (EWHC 1717 (QB), [2010] QB 204) as to the meaning of certain words carried on health foods sold by the respondent supermarket chain (D) in a claim by C for malicious falsehood.

C was a major producer and supplier of the sweetener aspartame. D sold its own brand of health food. Some of the foods were labelled ‘No hidden nasties’ and ‘No artificial colours or flavours and no aspartame’.

The judge held that a substantial number of customers would ascribe a damaging meaning to the packaging that there was a risk that aspartame was harmful or unhealthy and, further, that a substantial number would ascribe to it an innocuous meaning that those foods were for customers who found aspartame objectionable. The judge then applied the single meaning rule to those meanings, which he took to require that he should not select one bad meaning where other non-defamatory meanings were available. Accordingly, he took the meaning to be the second of his two meanings, which finding if upheld would mean that C would lose its claim. The issue was whether the single meaning rule in libel ought to be applied to the tort of malicious falsehood.

Held: The single meaning rule was not to be imported into the tort of malicious falsehood. The rule itself was anomalous, frequently otiose, and where not otiose, unjust. Where it was capable of being applied, as in the present case, the rule produced ­injustice. On the judge’s unchallenged findings, the meanings which reasonable consumers might put on D’s health-food packaging included both a damaging and an innocuous meaning. There seemed to be no reason why the court should not permit the claimant to prove malice in relation to the damaging meaning, and if proved to consider the consequential damage. To artificially presume a single meaning was contrary to its own findings that there were two possible meanings. Such considerations would not make trials of malicious falsehood claims unwieldy or over-complex, but would make the trial of the issues ­fairer and more realistic. Trial of plural meanings permitted the words’ damaging effect to be put into perspective and both malice and, if applicable, damage to be more realistically gauged.

Appeal allowed.

James Price QC, Matthew Nicklin (instructed by CMS Cameron McKenna) for the appellant; Andrew Caldecott QC, Manuel Barca (instructed by Kempner Robinson) for the respondent.