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Wednesday, April 1, 2020

Class actions proceed after FDA decides evaporated cane juice is sugar

By S. Laney Griffo | Nov 29, 2016

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SAN FRANCISCO (Legal Newsline) — Following the Federal Drug Administration’s May ruling on the use of term evaporated cane juice (ECJ) on products, courts will begin hearing lawsuits involving over the ingredient.

Many products, like juices and yogurts, that appear to be health food products list ECJ in the ingredients. All over the country, consumers allegedly believed the products to be healthy when in fact, ECJ has a similar makeup as white sugar.

Labels will no longer list evaporated cane juice as an ingredient | Shutterstock

“To make the product ‘evaporated cane juice,’ the concentrated cane extract is filtered and undergoes a single crystallization process,” the FDA said in its guidance on the use of the term evaporated cane juice.

“The crystals are then separated from the molasses using centrifugation."

The guidance goes on to say that ECJ has “essentially the same composition as white sugar and other sweeteners derived from sugar cane.”

Many consumers are now angry that they had been allegedly misled about the ingredients of the product because it wasn’t clear that ECJ is sugar.

“There have a been a number, primarily in California, putative class actions filed,” attorney Creighton Magid, a partner with Dorsey, told Legal Newsline.

One of the most notable of these cases is Swearingen v Santa Cruz Natural Inc., a class action filed on Sept. 16, 2013.

The case stated that the plaintiffs suffered due to the defendants “unlawful sale of misbranded food products.”

This case was stayed, as were similar cases that had been filed around the country until the FDA released guidance on the use of the name. In May, the FDA issued its guidance on ECJ.

“The FDA came out and clearly said its misleading to call sugar, evaporated cane juice,” Magid said.

In the guidance, the FDA said, “the term does not accurately describe the basic nature of the food and its characterizing properties."

Following the guidance, courts are beginning to hear cases involving ECJ. Specifically, in the Swearingen v Santa Cruz Natural Inc. case, Judge Susan Illston of the U.S. District Court for the Northern District of California denied the defendants’ motion to dismiss.

 It is unclear how these cases will end, however. In California, the case must pass the reasonable consumer test, meaning someone acting reasonably would’ve also been deceived.

Although ECJ is not specifically named sugar, there are grams of sugar listed on the product. The plaintiffs claim they believed the sugar that was listed was naturally occurring from some of the fruits in the products.

“This gave Judge Illston some pause,” Magid said. “Judge Illston is skeptical but said its not for a judge to say, it's for a jury to decide.”

Whether the plaintiffs were truly deceived by the name, Magid said it is important for ingredients to be clearly listed as what they are and for consumers to be informed.

Regardless on how the cases end, the FDA guidance said, “In FDA’s view, the common or usual name for the ingredient currently labeled as 'evaporated cane juice' includes the term 'sugar' and does not include the term 'juice.'"

 “I think the use of ECJ will start disappearing from labels,” Magid said. “The writing is on the wall.”

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