SUBSCRIBE

Breaking News on Food & Beverage Development - North AmericaEU edition | Asian edition

News > Regulation

Chobani: The FDA, not the courts, should judge whether term ‘evaporated cane juice’ is permitted on pack

2 commentsBy Elaine WATSON , 09-Sep-2013
Last updated the 09-Sep-2013 at 14:56 GMT

Chobani: 'There is a clear danger that inconsistent rulings [on evaporated cane juice labeling] will leave the food and beverage industry in a state of confusion'
Chobani: 'There is a clear danger that inconsistent rulings [on evaporated cane juice labeling] will leave the food and beverage industry in a state of confusion'

Are reasonable consumers being misled by companies using the term ‘evaporated cane juice’ (ECJ) to describe dried sugar cane syrup (aka sugar) on product labels? And should this issue be determined by the FDA or the courts?

For those keen to get a sense of which way the tide is turning in the recent tsunami of lawsuits accusing everyone from Chobani to Trader Joe’s of concealing added sugar by calling it ‘evaporated cane juice’, the picture emerging from the courts is far from clear.

WhiteWave Foods recently agreed to settle one such case (Singer v. WWF Operating Co. No. 13-CV-21232) and replace the term ‘evaporated cane juice’ with ‘organic cane sugar’ or ‘cane sugar’.

However, several other high-profile lawsuits on ECJ are still proceeding through the courts, with judges in two near identical cases recently coming to very different conclusions.

Judge Rogers: The Court finds it is appropriate to defer to the authority and expertise of the FDA

In her July 12 order on a lawsuit filed vs Wholesoy &Co in California over ECJ, federal judge Yvonne Gonzalez Rogers said the FDA had primary jurisdiction in the case.

She added: “The Court finds it is appropriate to defer to the authority and expertise of the FDA to say what the appropriate rules should be with respect to evaporated cane juice. Rendering a decision based on what this court believes the FDA might eventually decide on either of these issues would usurp the FDA’s interpretive authority.”

Judge Koh: Court is not persuaded these claims should be dismissed or stayed on primary jurisdiction grounds

On the very same day, however, fellow federal judge Lucy Koh declined to apply the primary jurisdiction doctrine to ‘evaporated cane juice’ claims in a case v Chobani also filed in California (Kane et al v Chobani 5:2012cv02425 ).

In an August 30 filing in a lawsuit over evaporated cane juice labeling, Trader Joe's said: "This court should defer to the authority and expertise of the FDA, and permit the agency to determine what the appropriate rules regarding evaporated cane juice should be."

In in her order granting in part and denying in part Chobani’s attempts to dismiss the lawsuit, Koh said: “As to Plaintiffs’ ECJ Claims generally, the Court is not persuaded that these claims should be dismissed or stayed on primary jurisdiction grounds.”

Chobani: Inconsistent rulings will leave the food and beverage industry in a state of confusion

But Chobani says that if individual judges are left to determine this matter, “there is a clear danger that inconsistent rulings will leave the food and beverage industry in a state of confusion”.

In a September 3 memorandum filed with the court, it added: “The evaporated cane juice issue is within the primary jurisdiction of FDA…FDA, not the Court, should interpret the technical, integrated set of FDA regulations at issue… “

FDA guidance specifically advises firms NOT to use term evaporated cane juice, but is non-binding

The plaintiffs in these cases note that the FDA has sent out multiple warning letters  and produced draft guidance  specifically telling firms not to use the term ‘evaporated cane juice’ because it is false and misleading and is not a juice.

Chobani: 'The evaporated cane juice issue is within the primary jurisdiction of FDA'

Chobani said it was well aware of the guidance, but stressed that guidance is not legally binding, despite Judge Koh's description of it as “controlling” in her July 12 order.

The FDA’s draft, non-binding guidance cannot be ‘controlling’ given 21 C.F.R. § 10.115 [where FDA explicitly states that draft guidance is not legally binding] and the unambiguous language in the guidance itself.

In the recent Hood decision (referenced above) Judge Rogers gave this indisputable record its proper due, and reached the straightforward conclusion that it would be improper to short-circuit or hijack FDA’s setting of its own policy.”

So what happens next?

Evaporated cane juice is made by extracting the juice from sugar cane and then evaporating or removing the water

A hearing on the Chobani case is set for September 12, while a hearing in a similar case vs Trader Joe’s (Gitson et al v Trader Joe’s Company No. 13-cv-1333 ) is set for September 18. 

What is evaporated cane juice?

Evaporated cane juice - which is made by extracting the juice from sugar cane and then evaporating or removing the water and first became available commercially in the 1990s - has a “lower impact on taste profiles and food coloration” than “common refined sugar”, according to WhiteWave Foods .

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.”

2 comments (Comments are now closed)

Sweetening the pot

No matter how much we try to hide it, or deny it, humans love a little sweetening whether it's from cane juice, or beets. If it is found that the ECJ is not counted in the total sugar grams on the label, then it's deceptive. Otherwise, if the courts feel ECJ is somehow confusing to the consumer, more specifically the American consumer, some of whom want to over-intellectualize food, call it ESCJ for evaporated sugar cane juice. That way people know for sure it's actually sugar. (Chobani and TJ lawyers, you can thank me later if this helps your defense).
Maybe we should focus more on the benefits of yogurt like the calcium and higher protein in the Greek versions and just enjoy the fact that it's got some added sweetness to it.

Report abuse

Posted by BJ Casey
10 September 2013 | 18h52

An argument full of sound and fury

And as Shakespeare continued, signifying nothing. I know of no one that is confused by "Evaporated cane Juice", and many, like me look for it on the label. I look not because I am confused, but because most sugar now comes from sugar beets which are a GMO product and the "Evaporated cane Juice" label says it is not GMO. That is good enough for most people. The courts and FDA need to either butt-out or require overt labeling of GMO contents. If there were a GMO labeling requirement then these law suits might make sense.

Report abuse

Posted by Jerry W. Segers
09 September 2013 | 23h20

Related products

Key Industry Events

 

Access all events listing

Our events, Events from partners...