Hoang Tran Feb. 10, 2016, 12:19pm


SAN FRANCISCO (Legal Newsline) - Stays of three class action lawsuits have been lifted because of continued delay of Food and Drug Administration guidance, according David Biderman, a partner in Perkins Coie's San Francisco and Los Angeles offices.

Biderman, who focuses his practice on mass tort litigation and consumer class actions, said that the cases have been on file in U.S. District Court for the Northern District of California since 2014. The court decided to lift the stays so the cases can proceed.

In each of the cases, the allegations against the defendants all hinge on the labeling of evaporated cane juice.

“The FDA earlier issued guidance that said that the term 'evaporated cane juice' was not a 'Common and Usual Name' for a food or food ingredient. The FDA guidance suggested the term should not be used,” Biderman said.

“Some companies used the term to describe ingredients in their products. Plaintiffs sued them in dozens and dozens of class actions claiming that the use of the term was misleading and that the companies should just use the term 'sugar.'”

In Perera v. Pac. Foods of Or. Inc., the putative class action alleges that Pacific Foods violated California’s consumer protection statutes because the labels on its Hemp Non-Dairy beverage and other products were listed as “all natural.” The plaintiffs allege that the beverages and other products contained artificial ingredients and evaporated cane juice and therefore could not be designated as all natural.

In Figy v. Lifeway Foods, allegations were thrown against Lifeway Foods, claiming that Lifeway misbranded its products by referring to the added sugar in its products as “evaporated cane juice.”

And finally, in Swearingen et al. v. Pac. Foods of Or., Inc., Pacific Food was once again alleged to have violated California’s consumer protection statutes over the supposed misbranding of its almond and soy-based beverages because the labels list ECJ as an ingredient rather than sugar.

“The suggestion made by Plaintiff was that the companies wanted to use a term that suggested a liquid or something other than sugar,” Biderman stated.

“The FDA agreed to review its guidance about whether evaporated cane juice could be a common and usual name for an ingredient. With the FDA considering action, the courts stayed the cases pending an FDA determination.

"The FDA was to make the decision in 2015 and now says they will make the decision in 2016. Some courts grew concerned with the FDA’s delay and lifted the stay.

"Most courts have still maintained the stay.”

Courts refer to guidance from government entities regularly and issue stays on cases until said counseling is received, he added.

Due to circumstances, the requested guidance can sometimes be delayed, and the courts will lift the stay so the cases can be heard. In regards to these three cases, there was no given reason why the FDA delayed its counsel.

”I don’t think they are purposefully dragging their feet. They are just very busy with many pending items. They no doubt realize this has an impact on litigation so may be a little more careful also,” Biderman said.

He also believes that the court should refer to experts when needed and, in reference to these three cases, the court should have waited for the FDA’s response.

“In our opinion, courts should defer to the FDA — the FDA has the expertise and is the appropriate agency to make the determination about the common and usual name for evaporated cane juice," he said.

"Even if there is some delay, the FDA needs time and courts should maintain the stay.”

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