The case* – which was filed in 2013 in California and stayed (put on ice) in 2014 after the FDA said it would conduct a probe into ECJ labeling – can now proceed, said US district Judge Yvonne Gonzalez Rogers.
In a court order filed on July 27, she said: “On July 25, 2016, the parties filed a Joint Notice indicating that the FDA had completed its process and issued administrative guidance concerning ECJ and requesting that the stay be lifted. Based thereon, the Court orders that the Stay of this Action is dissolved, and the action may proceed.”
The finalized FDA guidance (May 2016) states that the ingredient known as ‘evaporated cane juice’ should simply be declared as ‘sugar’ on food labels.
Plaintiffs in ECJ cases say this validates their arguments, while defendants say that FDA guidance – whether in draft form or finalized form - is not legally binding (see how Lifeway Foods reacted HERE).
Is the term evaporated cane juice misleading?
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 it’s just a fancy term for sugar and that manufacturers only use it because it sounds healthier and 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).
In court papers filed in 2013, for example, Odwalla argued that "ECJ is produced from sugar cane, but is not processed in the same manner as refined white sugar," and should therefore be described differently on pack.
In finalized guidance released in May, the FDA said the term ‘evaporated cane juice’ is “false and misleading” and advised manufacturers not to use it on food labels. It has also acknowledged that ‘dried cane syrup’ is not a great alternative, and has instead advised companies to simply declare ECJ as ‘sugar.’
“We are advising the regulated industry of our view that the term ‘evaporated cane juice’ is not the common or usual name of any type of sweetener and that this ingredient should instead be declared on food labels as ‘sugar,’ preceded by one or more truthful, non-misleading descriptors if the manufacturer so chooses (eg. ‘cane sugar’)."
Legal ramifications of FDA guidance on evaporated cane juice
While FDA guidance is not legally binding, many plaintiffs’ attorneys nevertheless seize upon it in consumer class action lawsuits, and the long-awaited guidance is likely to trigger a flurry of activity, David Biderman, a partner at law firm Perkins Coie, told FoodNavigator-USA in May.
“We would expect additional litigation and a flurry of activity in this area. The stays will be lifted on all cases which have been stayed due to the FDA’s consideration of this issue. Those cases will now go forward.”
Justin Prochnow, shareholder at law firm Greenberg Traurig, meanwhile, noted that, “Just because the FDA says that it believes the title of 'evaporated cane juice' is false or misleading, that doesn’t make it per se false or misleading.”
In reality, however, what the FDA says in such documents does impact civil litigation, he said: "So, 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."
*The case is Reese v. Odwalla Inc., et al., Case No. 4:13-cv-00947, in the U.S. District Court for the Northern District of California.