Market-leading kefir brand Lifeway Foods is one of scores of manufacturers that have been targeted in false advertising lawsuits over their use of the term ‘evaporated cane juice,’ which plaintiffs argue is only used on food labels because it sounds healthier than 'sugar.'
Many of these cases were stayed or dismissed without prejudice in 2014 when the FDA said it would take a fresh look at the validity of the term ECJ, but are now back in play after the agency issued finalized guidance on the matter last month.
Plaintiff: Finalized guidance reiterates what FDA has said all along, that ECJ is false and misleading
The finalized May 2016 guidance, notes California plaintiff Robert Figy in court documents filed this month (Figy vs Lifeway Foods, 3:13-cv-04828), merely reiterates draft guidance issued by the FDA in 2009 advising manufacturers not to use the term 'evaporated cane juice' on labels because it is false and misleading.
“With respect to the original motion to dismiss, the FDA’s Final ECJ Guidance puts the final nail in the coffin of Lifeway’s assertion that calling sugar ECJ does not violate the applicable regulations…" argues Figy's attorney Ben Pierce Gore.
"The Final ECJ Guidance simply states what the Plaintiff (and the FDA) have been advocating all along—the use of ECJ on food ingredient lists is illegal because it is false and misleading and because it violates numerous FDA regulations (which have been adopted as California law).”
Lifeway Foods: FDA guidance is not legally binding
In a brief filed the same day, however, defendant Lifeway Foods, notes that FDA guidance, finalized or otherwise, does not constitute law, quoting the FDA itself, which stresses that its guidance “does not establish any rights for any person and is not binding on the FDA or the public.”
Moreover, said Lifeway Foods, reasonable consumers know the ECJ is sugar, so the term is not misleading:
"[The finalized guidance] does not provide any basis by which to conclude that a health-conscious consumer, who admitted to reading Lifeway Foods’ labels to avoid added sugar, could plausibly read a label listing ECJ as an ingredient and fail to understand that the product contains added sugar, absent some allegation regarding what he believed ECJ to be if not sugar.”
Why all the controversy?
The use of the term ‘evaporated cane juice’ (ECJ) to describe a crystalized sugar derived from sugar cane has prompted scores of lawsuits against firms from Chobani to Trader Joe’s in which plaintiffs argue that manufacturers only use it because it conceals the fact that they are adding sugar to their products.
ECJ manufacturers, however, insist that the term 'evaporated cane juice' accurately reflects what the product is and clearly distinguishes it from regular white refined sugar (although it does have the same number of calories and counts as sugar in the Nutrition Facts panel).
Read the FDA's final guidance on ECJ labeling HERE.
Read more about ECJ HERE.
"Guidance is not law... Just because the FDA says it believes 'evaporated cane juice' is false or misleading, that doesn’t make it per se false or misleading... That said, if companies want to avoid the potential for litigation, they would be wise to consider carefully how they want to identify that ingredient on the label and swap 'sugar' for 'juice' to avoid the potential for regulatory action and civil litigation."
Justin Prochnow, shareholder, Greenberg Traurig