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Evaporated cane juice blues for Blue Diamond as judge surprises legal experts by allowing lawsuit to proceed

By Elaine Watson+

04-Jun-2014
Last updated the 04-Jun-2014 at 16:20 GMT

Blue Diamond has been unlucky say legal experts, as most ECJ-related lawsuits have been dismissed or stayed following the FDA's recent intervention
Blue Diamond has been unlucky say legal experts, as most ECJ-related lawsuits have been dismissed or stayed following the FDA's recent intervention

Several food manufacturers have been let off the legal hook recently as lawsuits filed against them for using ‘evaporated cane juice’ (ECJ) on labels have been dismissed or stayed following the FDA’s decision to look again at its guidance on ECJ. But almond giant Blue Diamond has not been so lucky.

Blue Diamond is one of scores of firms targeted in a recent flurry of class action lawsuits alleging that the only reason they use the term ‘evaporated cane juice’ on labels is to conceal the fact that they are adding sugar to their products.

Many of these cases also cite FDA draft guidance from 2009 urging firms not to use the term ECJ on the grounds that it is false and misleading and that by using it they are violating food labeling regulations requiring ingredients to be described by their common or usual names.

However, everything changed in March when the FDA said it might revise its draft guidance and issue a final version, prompting several judges handling similar cases to dismiss or stay them based on the doctrine of primary jurisdiction (ie - that this is a matter for the FDA, not the courts).

Judge certifies class of California consumers

An ECJ-related case vs Odwalla was recently dismissed on primary jurisdiction grounds

However, in her May 23 order on an ECJ-related case against Blue Diamond, California judge Lucy Koh said plaintiff Chris Werdebaugh had “introduced sufficient evidence that he relied on Blue Diamond’s allegedly misleading label statements in making his purchases”.

Koh rejected Werdebaugh’s call to certify a nationwide class of consumers, but agreed to certify a class of California consumers who bought almond milk products from Blue Diamond from May 19, 2008 featuring the label statements ‘evaporated cane juice’ and/or ‘All Natural.’

Attorney: Until FDA issues definitive guidance on ECJ, confusion over the application of the primary jurisdiction doctrine will continue

Her decision has surprised legal experts given that several other ECJ-related cases have been dismissed or kicked into the long grass following the FDA’s recent intervention .

A lawsuit filed against Attune Foods for using the term evaporated cane juice on labels was recently dismissed on primary jurisdiction grounds

Commenting on Koh’s order in the National Law Review , Robin A. Achen, an associate in the Business Trials Practice Group in LA office of law firm Sheppard, Mullin, Richter & Hampton LLP, said: “Until the FDA issues definitive guidance on this issue, it seems that confusion over the application of the primary jurisdiction doctrine will continue.”

In a blog post , Ronald Rothstein, a partner at the Chicago office of law firm Winston & Strawn, added: “The Blue Diamond Growers class certification decision is somewhat surprising against this backdrop [or other ECJ-related cases being dismissed or stayed].”

He added: “It will be interesting to see whether Judge Koh reconsiders her earlier primary jurisdiction ruling in light of the March 5 notice and subsequent decisions.”

Judge Koh’s decision is ‘somewhat surprising’

California plaintiff Chris Werdebaugh filed his original complaint against Blue Diamond on May 29, 2012, accusing it of deceiving consumers by using the term ‘evaporated cane juice’ on packs of shelf-stable Chocolate Almond Breeze almond milk and by labeling products containing the acidity regulator potassium citrate ‘all-natural’.

The case is Chris Werdebaugh et al. v. Blue Diamond Growers, 5:12-cv-02724 filed in the US district court in the northern district of California, San Jose division. Werdebaugh is represented by Ben F. Pierce Gore of Pratt & Associates.

A spokesperson for Blue Diamond said the firm "does not comment on legal matters pertaining to its business".

Click on the link below to read more on ECJ:

Flawed FDA guidance on evaporated cane juice has caused chaos for the food industry, say Chobani, Amy's Kitchen et al

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