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

By Elaine WATSON , 08-May-2014

Chobani is one of several companies to be sued over its use of 'evaporated cane juice' on labels. It prevailed, but only after a lengthy and costly legal battle
Chobani is one of several companies to be sued over its use of 'evaporated cane juice' on labels. It prevailed, but only after a lengthy and costly legal battle

The FDA’s “flawed” 2009 draft guidance  on ‘evaporated cane juice’ has put food manufacturers and retailers between a rock and a hard place when deciding what to put on their labels, says a group of leading manufacturers.

While the FDA acted in good faith, its intervention “created the potential for a significant degree of chaos among sweetener providers, food manufacturers, retailers and consumers”, says the group, noting that the guidance has been cited in scores of class action lawsuits against everyone from Chobani to WhiteWave Foods.

In a 92-page document  responding to the FDA’s call for fresh comments on its draft guidance, the Grocery Manufacturers Association (GMA), Amy’s Kitchen, Chobani, KIND Healthy Snacks and others urge the FDA to “declare evaporated cane juice as the name for the ingredient” and bring an end to the uncertainty.

Scores of consumer class action lawsuits cite the FDA draft guidance

Plaintiffs in a recent flurry of lawsuits allege that the only reason these firms use the term evaporated cane juice on labels is to conceal the fact that they are adding sugar to their products.

They also allege that they are violated food labeling regulations which say ingredients must be described by their common or usual names, and that to call something ‘juice’ it should be ‘the aqueous liquid expressed or extracted from one or more fruits or vegetables’.

And all of them cite the FDA’s 2009 draft guidance , which tells manufacturers not to use the term ‘evaporated cane juice’ because it is “false and misleading” and urges them to use the term ‘dried cane syrup’  instead.

No one uses the term ‘dried cane syrup’, and it doesn’t even make sense

However, an analysis of the Mintel new products database indicates that between June 1996 and September 2009, zero products listed ‘dried cane syrup’ as an ingredient, says the document from the GMA/Chobani et al.

FDA proposed a name that had virtually never been used before in any context that we could find, and does not accurately describe the manufacturing process of the ingredient.”

‘Evaporated cane juice’, meanwhile, accurately describes the ingredient in question, claims the GMA et al, which says food manufacturers have “accumulated a substantial amount of data and information showing that ‘evaporated cane juice’ is the common or usual name of the ingredient”.

Trader Joe's is one of several firms that has been sued over using the term 'evaporated cane juice' on product labels

Between a rock and a hard place

It adds: “The class action lawsuits—combined with the Draft Guidance—have placed and continue to place food manufacturers in a very difficult position…

“The lawsuits not only did an end-run around the regulatory process, they forced manufacturers either to change the name of the ingredient from its common and usual name to an unknown, fabricated name that does not accurately describe the ingredient’s manufacturing process (e.g., “dried cane syrup”), or risk getting sued.”

Food manufacturers have all responded in their own way, it adds, with some opting to maintain the status quo until the FDA finalizes its position; and others choosing to change their labels because they are worried about legal threats.

While some firms targeted in these suits have prevailed - notably Chobani - they have spent a significant amount of time and money defending themselves, while others have chosen to settle early on in order to avoid the cost and hassle of protracted litigation.

“All of this has resulted in chaos for manufacturers in the industry and inconsistent rulings in court,” says the GMA/Chobani  et al document.

“And, all of this is unnecessary because evaporated cane juice… is a defensible, recognizable and acceptable common and usual name for the ingredient.”

MD: Term evaporated cane juice is very misleading and confusing, implying that it is healthier than regularly processed sugar

However, other commentators argue that the term ‘evaporated cane juice’ is only used because it makes it less obvious to consumers glancing at an ingredients list that a product contains added sugar.

For example, Jeff Ritterman, M.D. vice president of the San Francisco Bay Area Chapter of Physicians for Social Responsibility , says: “Evaporated cane juice is very misleading and confusing, implying that it is healthier than regularly processed sugar.”

Talking to FoodNavigator-USA last year, Pierce Gore of Pratt & Associates, who has filed scores of ECJ-related lawsuits, said: 'Our kids are swimming in sugar; there’s an epidemic of type two diabetes, and part of the problem is that we’re eating all this sugar without even realizing it because it’s hidden behind terms like ‘evaporated cane juice'

Nutrition education group: ECJ isn't juice, it's a single-crystallized sugar

Non-profit nutrition education group Processed-Free America , meanwhile, argues that calling crystallized sugar evaporated cane juice is misleading as it implies that firms merely squeeze out the juice from sugar cane and evaporate it.

In fact, they have to clarify and filter the juice to remove solids, heat it with steam and concentrate it into a syrup; then seed it with tiny sugar crystals and boil it to form a mixture of crystals and molasses. Next it is put in a centrifuge to spin out the molasses. The golden crystals are then dried and packed.

The end product has a darker color than white refined sugar, which goes though some additional steps, but ECJ is still a crystalized sugar, not just evaporated juice, says Processed Free America.

Click HERE to read our recent article on the status of ECJ-related lawsuits (several of which have been dismissed or put on ice pending FDA action).

Click HERE to read about what ECJ is.

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