Trader Joe’s seeks to conceal added sugars with term ‘evaporated cane juice’, says lawsuit

A lawsuit filed by Pratt & Associates LLP - which sued Chobani​ on similar grounds last year - says Trader Joe’s uses the term ‘evaporated cane juice’ instead of the more accurate terms ‘dried sugar cane syrup’ or ‘sugar’ on several private label products from Greek-style yogurt to soy milk, despite the fact that the Food and Drug Administration (FDA) has repeatedly told firms not to use it.

The complaint, filed on behalf of California residents Amy Gitson, Christine Vodicka and Deborah Ross on March 25 in a federal court in California, says the FDA has sent out multiple warning letters​ and produced draft guidance​ specifically telling food manufacturers not to use the term ‘evaporated cane juice’ because it is “false and misleading” ​and is not in fact a juice.

The plaintiffs were misled by the defendant’s use of the term ‘milk’ in connection with its soy beverages ​

Additionally, evaporated cane juice is not on the list of nutritive carbohydrate sweeteners permitted for use in yogurt under the FDA’s standard of identity for yogurt, allege Gitson et al

They also allege that Trader Joe’s falsely describes products as having ‘no added coloring or preservatives’ when in fact several, “including French Village Strawberry non-fat yogurt, have artificial coloring and a number… including chocolate peanut butter salted caramel truffles, have added chemical preservatives”.​

Finally, Trader Joe’s also misleads shoppers by representing non-dairy calcium products as ‘milk’, they argue.

“The plaintiffs were misled by the defendant’s use of the term ‘milk’ in connection with its soy beverages​ [Trader Joe’s organic chocolate soy milk]. Defendant’s actions illegal mislead the public by inappropriately employing names and terms reserved by law for standardized dairy products.”​

In truth, evaporated cane juice is little different than added white sugar​

The language in the complaint echoes that in a lawsuit filed against Greek yogurt giant Chobani​ by Californian plaintiff Katie Kane last year, which notes that: “In truth, evaporated cane juice is little different than added white sugar. White sugar and evaporated cane juice both have 111 calories per ounce.​

“Both types of sugar come from the same cane crop, and are about 99% sucrose.”​

Chobani: To any reasonable consumer, the word 'cane' in the ingredient list indicates a sweetener ingredient​

In a motion to dismiss Kane's lawsuit filed in November 2012, Chobani said that the FDA's 2009 guidance advising firms not to use the term evaporated cane juice is "a draft" ​and "non-binding​" from a legal perspective. 

Meanwhile, it "is not plausible that a reasonable consumer would be deceived​" by the term evaporated cane juice added Chobani, which said that in any case, the plaintiff's state law claims are preempted by federal labeling laws.  ​

It added: "Plaintiffs cannot plausibly claim that they were unaware that 'evaporated cane juice' is a sweetener. ​

"To any reasonable consumer (and especially a consumer with the apparent concerns over the source of sugars these plaintiffs allegedly had), the word 'cane' in the ingredient list indicates a sweetener ingredient. This is particularly true for plaintiffs who allege that they knew 'dried cane syrup' was a sweetener ingredient and, therefore, cannot plead ignorance about evaporated cane juice."​

Chobani: Evaporated cane juice is​ permitted in yogurt​

As for the issue of whether evaporated cane juice is a permitted sweetener in yogurt, Chobani said the "FDA has proposed a new standard of​ identity for yogurt that allows any 'safe and suitable sweetening ingredients'. (74 F.R. 2443, 2455: Jan.​ 15, 2009). Evaporated cane juice is unquestionably a 'safe and suitable sweetening ingredient'.​

"Significantly, the FDA has also suggested that it will not enforce​ violations of the current standard of identity (relied on by plaintiffs) if companies comply with the​ proposed one (in which evaporated cane juice is unquestionable permitted)."​

Trader Joe’s - which is based in California and has 370 stores nationwide - said it did not wish to comment on the lawsuit (Gitson v. Trader Joe’s Co., No. 13-1333 (U.S. District Court, Northern District, California, San Francisco Division). 

A spokeswoman said: "Trader Joe's does not comment on pending litigation."​