In orders on two ECJ-related lawsuits* against Healthy Beverage LLC (which makes Steaz Iced Teas and energy drinks) and Late July (organic snacks), US district judge Edward M. Chen said he needed answers.
Both cases, he said, had been stayed (put on ice) "pending the FDA’s decision after it reopened the comment period regarding whether ‘evaporated cane juice’ (ECJ) is a common or usual name for sugar.
“This Court requests the [FDA] Commissioner to inform the Court whether a final determination regarding ECJ is feasible within agency priorities and resources. In particular, the Court would like to know if the FDA is likely to issue any further guidance regarding ECJ within the next 180 days.”
The term ‘evaporated cane juice’ (ECJ) has prompted a wave of civil litigation against firms from Chobani to Trader Joe’s in which plaintiffs argue that it’s just a fancy word for sugar and that manufacturers only use it because it sounds healthier and conceals the fact that they are adding sugar to their products.
They also note that FDA 2009 draft guidance advises firms not to use the term ECJ because it is “false and misleading” and urges them to use the term ‘dried cane syrup’ instead.
But food manufacturers say the ‘flawed’ draft guidance has caused chaos - and a bunch of lawsuits - for the industry, and that no one understands what ‘dried cane syrup’ means.
All eyes are now on the FDA, which said in March 2014 that it would revisit its draft guidance, but has said nothing since, creating confusion in the courts, with many judges dismissing ECJ cases without prejudice (which means plaintiffs can re-file) or staying them (putting them on ice) until the FDA clarifies its position.
An FDA spokesman told FoodNavigator-USA: "We are working to finalize our draft guidance for industry titled 'Ingredients Declared as Evaporated Cane Juice.' We do not have a firm date for publication at this time."
Read more about evaporated cane juice HERE.
*The orders were issued on May 15 in two cases: Mary Swearingen, et al. V. Healthy Beverage, LLC, et al. 13-cv-04385 and Mary Swearingen, et al. V. Late July Snacks LLC. 13-cv-04324