Jessica M. Karmasek Aug. 22, 2013, 9:00pm

SAN JOSE (Legal Newsline) -- The maker of a popular line of Greek yogurt is asking a federal judge to reconsider her decision refusing to dismiss a class action lawsuit against the company over its use of the term "evaporated cane juice" to describe sugar.

Chobani Inc. filed its notice of motion and motion to reconsider the court's order on its motion to dismiss the plaintiffs' second amended complaint in the U.S. District Court for the Northern District of California San Jose Division Wednesday.

Dale Giali, an attorney for Mayer Brown LLP, who is representing Chobani in the lawsuit Kane v. Chobani Inc. argues that the court's order recognizing an evaporated cane juice, or ECJ, claim is predicated on a theory -- the theory that the plaintiffs were mislead to believe that ECJ was a healthier form of sugar -- the plaintiffs never pleaded, that contradicts their actual allegations and that the plaintiffs have disavowed.

Chobani also contends the court's order rejecting its primary jurisdiction as to the plaintiffs' ECJ claims did not take into account a recent decision in Hood v. Wholesoy & Co.

In that case, a federal judge granted Wholesoy's motion to dismiss. A issue was the company's use of the evaporated cane juice term, and that it cannot call its product "yogurt" because it contains soy.

Like Wholesoy argued, Chobani contends that the court should defer to the Food and Drug Administration.

"First, the FDA is uniquely suited to interpret and apply its technical and integrated regulations to determine if ECJ may be listed as an ingredient and in particular whether ECJ is the 'common or usual name' of an ingredient," Giali wrote in the yogurt maker's 15-page motion.

"Second, judicial resolution of ECJ claims based on a given state's law would defeat the important policies underlying a national uniform labeling standard.

"Conflicting decisions on a given state's law would expand the chaos."

Judge Lucy Koh is overseeing the case. A hearing has been set for Sept. 12.

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