Alexandra Watson Jul. 20, 2016, 10:22am


SILVER SPRING, Md. (Legal Newsline) – The Food and Drug Administration (FDA) recently weighed in on food companies that listed evaporated cane juice as an ingredient in their products.

It asserted that "sweeteners derived from sugar cane should not be declared on food labels as evaporated cane juice," and the use of the term is considered deceptive or misleading. The agency also emphasized that the term "juice" should not be used unless it is a “fruit or vegetable juice or is made from fruit or vegetable juice.”

 

Christopher Van Gundy, a partner with Keller and Heckman LLP in San Francisco, explained that the FDA has two goals - food safety and “protecting the consumer from misbranding.”

The FDA’s new May guidance explaining why the agency considers the term evaporated cane juice misleading serves its misbranding function.

Although this guidance does not have the force of law, Van Gundy explained that companies are well advised to heed the guidance in applicable circumstances. According to this new guidance, the FDA found the term “evaporated cane juice” misleading because it did not meet the traditional regulatory definition of juice, and was much closer to the definition of sugar.

While the FDA acknowledged that there is a juicing function in producing “evaporated cane juice,” it found that the nature and characteristic properties of this product was a crystalline structure commonly understood and used as a sweetener such as sugar.

  As a result of what has been considered mislabeling, several companies have been at the center of class action lawsuits by consumers or consumer advocate groups. 

One case described by Proskauer attorneys concerned a product made by KIND foods. It involved the labeling on KIND’s Vanilla Blueberry Clusters package where evaporated cane juice was listed as one of its sweeteners. It also boasted that the product contained “no refined sugars.” 

However, the court voted in favor of KIND foods stating that the consumer did not meet the minimum requirements for such a lawsuit.

Chobani, a company that produces yogurt, was also the target of a similar lawsuit by three plaintiffs in California. They argued that the use of the terms evaporated cane juice and “only natural ingredients” on Chobani products was misleading its consumers. 

In 2014, the case was brought to district court, where it was dismissed. It was then appealed at the U.S. Court of Appeals for the Ninth Circuit, where attorneys Randy Shaheen and Christopher Boone of Venable LLP reported that the case was later “stayed” depending on the “outcome of an FDA review of these two terms.”

Van Gundy pointed out that many of these types of cases, including the one involving Chobani, were stayed pending review by FDA. Therefore, because the FDA guidance has come out, the cases will begin again, he said.

He explained that it is too early to tell whether the plaintiffs in these cases will win, but said the guidance is a "boost" for the plaintiffs’ attorneys. However, despite the guidance, he cautioned that the plaintiffs will carry a substantial burden to prove that the term evaporated cane juice was misleading for a large number of potential class members.

It is likely that similar cases involving the use of the term evaporated cane juice to describe a sweetener will be re-examined in the courts. If the plaintiffs were to win in any of these cases, it would likely compel food companies to properly label the ingredients in their products and ensure that consumers are not being misled by what they are buying at the supermarket.

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