“Evaporated Cane Juice” Lawsuits Continue

There has been a recent wave of lawsuits targeting food products that list “evaporated cane juice” (or ECJ) as an ingredient rather than “cane sugar,” “dried sugar cane syrup” or, more simply, “sugar.”   Recent defendants include Trader Joe’s and Chobani.  The gist of such claims is that this deceives consumers into believing they are purchasing a product with healthier ingredients.  And plaintiffs have sought to buttress these claims by citing (a) draft FDA guidance from 2009 stating that companies should not refer to the sweetener using a name that suggests the ingredient is juice, and (b) certain warning letters asserting that “evaporated cane juice is not the common or usual name of any type of sweetener.”

In July 2013, WWF Operating Co., which does business as White Wave Foods, settled a similar class action lawsuit  filed in April 2013 in the Southern District of Florida.  Under the settlement, White Wave Foods agreed to give a partial refund to consumers and change the term on its ingredients list from ECJ to “organic cane sugar” or “cane sugar.”

Significantly, a suit alleging similar ECJ claims was also filed against White Wave Foods in California on April 29, 2013.  Accordingly, White Wave Foods now seeks to dismiss those claims based on the position, among others, that the suit is “barred by issue and claim preclusion principles” because plaintiffs were members of the class bound by that settlement.  Notably, White Wave Food’s motion to dismiss also contends that since “ECJ became available commercially in the 1990s it has appeared on thousands of food labels” and that its “widespread use is, unsurprisingly, most prevalent in healthy foods at the industry’s vanguard, stirring no controversy until this recent tsunami of lawsuits was filed.”   The extent to which such lawsuits will alter the practice of using the term “evaporated cane juice” on ingredient lists remains to be seen.

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