Judge tosses ‘no refined sugars’ case vs KIND Healthy Snacks, but attorney says it had a lucky escape

23-Mar-2015 - Last updated on 24-Mar-2015 at 03:25 GMT

A judge in Illinois has thrown out a class action lawsuit against KIND LLC over “no refined sugars” claim on its Healthy Grains products, which contain evaporated cane juice, a form of sugar, and molasses.

Evaporated cane juice has been the subject of multiple lawsuits in the past couple of years, in which plaintiffs argue that it’s basically crystallized sugar masquerading as something more 'natural' or healthy.

However, the (amended version of the) lawsuit in question is not about the term ‘evaporated cane juice’ (ECJ) per se, but KIND's claim that products containing ECJ have ‘no refined sugars’, with the implication that this confers some kind of meaningful advantage.

According to plaintiff Rochelle Ibarrola, the claim 'no refined sugars' is simply misleading, as while evaporated cane juice contains trace amounts of minerals and undergoes slightly less processing than regular white sugar, it’s still a “refined sugar with very little nutritional value”.

Judge: No reasonable consumer would think that evaporated cane juice is sugar in its natural, completely unrefined state

However, in a March 12 order dismissing the case with prejudice (meaning the plaintiffs cannot re-file), US district judge Sara Ellis said that consumers understood that all sugars were processed in some way, but some were more obviously ‘refined’ than others.

She added: “No reasonable consumer would think –as Ibarrola alleges she did – that the sugar contained in KIND’s Healthy Grains products was still in its natural, completely unrefined state… a reasonable consumer would know that all sugar cane-derived sweeteners suitable for human consumption must be at least partially refined.

“Thus the court finds that the only reasonable conclusion after reading the entire… label is that KIND used the word ‘refined’ as a term of art to distinguish partially refined sugars like evaporated cane juice and molasses from fully refined sugars like table sugar.”

Kind grains — The KIND Healthy Grains products referenced in the lawsuit contained molasses and evaporated cane juice, which KIND now labels on pack as ‘dried cane syrup' in line with FDA guidance

KIND was lucky to get case thrown out, says attorney: 'Here, the claim 'no refined sugars' is flat-out false'

So what do legal experts make of the case?

Steve Gardner, who heads the food law practice at the Stanley Law Group of Dallas, Texas (and was formerly director of litigation at consumer advocacy group The Center for Science in the Public Interest) said KIND was lucky to have had the case thrown out.

He added: "This isn’t a question of whether anyone’s interpretation of the 'no refined sugar' claim is reasonable. That’s a test applicable to deception claims. Here, the claim 'no refined sugars' is flat-out false. It would in fact be unreasonable for a consumer to interpret the phrase 'no refined sugars' to mean 'with refined sugars, just not as refined as some other sugars that I could name'."

The judge, he argued, "substituted her own interpretation of a fact for the plaintiff’s allegations".

Processed Free America: Evaporated cane juice is just plain old sugar

Consumer groups meanwhile, remain suspicious of firms trying to present evaporated cane juice as superior to table sugar given that it has an identical number of calories, is processed by the body in the same way, and you'd have to eat a ton of it in order to get useful levels of the minerals it contains.

In a comment to the FDA – which launched a new probe into evaporated cane juice labeling last year - non-profit nutrition education group Processed-Free America said consumers might assume that firms merely squeeze out the juice from sugar cane and evaporate it.

In fact, manufacturers of evaporated cane juice have to clarify and filter sugar cane juice to remove solids, heat it with steam and concentrate it into a syrup; then seed it with tiny sugar crystals and boil it to form a mixture of crystals and molasses. Next it is put in a centrifuge to spin out the molasses. The golden crystals are then dried and packed.

The end product has a darker color than table sugar, which goes though some additional steps, but ECJ is still a crystalized sugar, not just 'evaporated juice', said Processed Free America.

Cut sugar cane stalks — Michael DeLuca, VP of specialty ingredients at Domino Sugar: 'During the entire time that it has been on the market, ECJ has been considered entirely distinct from what is commonly known as refined sugar.'

Domino Sugar/Florida Crystals: ECJ is entirely distinct from what is commonly known as refined sugar

ECJ manufacturers beg to differ, however.

In a statement submitted to the court in a lawsuit over ECJ labels (click here) Michael DeLuca, VP of specialty ingredients at Domino Sugar, said ECJ was "entirely distinct from what is commonly known as refined sugar".

He added: "The plaintiffs say the industry uses ECJ as a euphemism for sugar. This is incorrect...During the entire time that it has been on the market, ECJ has been considered entirely distinct from what is commonly known as refined sugar.

"ECJ has a distinct darker appearance because it is not decolorized, as is refined sugar. ECJ has distinct taste and smell characteristics. Further, ECJ has nutrients and other inherent constituents that do not exist in refined sugar.”

The case is: 3:13-cv-50377 Rochelle Ibarrola et al vs KIND LLC.