FDA: You can't call HPP-treated juice ‘fresh'... (But can you call it ‘raw’?)
So what can and can’t you say about HPP-treated foods and beverages without getting into legal hot water?
With respect to the word ‘fresh’ on food labels, the law is clear*, an FDA spokesman told FoodNavigator-USA: “No, you can't call it ‘fresh ‘if you put it under HPP [see regulation 21 CFR 101.95 click here]."
With respect to the word ‘raw’, however, there is no specific regulation, which is why the makers of some HPP-treated juices are now being targeted in a new wave of lawsuits.
Is ‘raw’ the next ‘natural’ in the food litigation stakes?
The latest firm in the firing line is San Diego-based Suja Life LLC, which is accused of duping shoppers into paying over the odds for HPP-treated juices by labeling them as "organic, raw and cold pressed', when in reality, alleges plaintiff Rebecca Heikkila, they are "nothing more than run-of-the-mill processed juices".
(The packaged has since been updated and now says 'organic and cold-pressured'.)
Heikkila's complaint, filed on February 5 in California - comes hot on the heels of a similar lawsuit filed by the same law firm (Bursor & Fisher, P.A.) against Hain Celestial over the marketing of its BluePrint HPP-treated juices (click here)**.
Suja juices have a 30-day shelf-life, unlike genuinely ‘raw’ juices that “must be consumed within days”, she adds: “This artificial extension of the lifespan of the juice products violates the fundamental principles underlying the raw food movement, consumers’ expectations, and industry standards.
“A direct and unavoidable result of the use of HPP is the destruction of the enzymes, nutrients, probiotics, and minerals that, but for HPP, would be found in the juice products…"
Avure Technologies: HPP products should be considered raw
So is she right?
Not surprisingly, leading HPP provider Avure Technologies Inc (which is not named in the lawsuit, and is commenting independently as an expert on the technology, not on this lawsuit specifically), says HPP doesn't have the destructive effects claimed.
Indeed, says Errol Raghubeer, Ph.D., VP, microbiology & food technology at Avure, one of the primary reasons firms use HPP rather than traditional heat-pasteurization is precisely because key nutrients are not damaged.
He told FoodNavigator-USA: “Under the HPP conditions used for the commercial application of HPP to juice and other food products, vitamins such as ascorbic acid, niacin and folic acid in orange juice; bioactive compounds such as chlorophyll and lutein in wheat grass; phytochemicals such as chicoric and chlorogenic acids in Echinacea purpurea; and food enzyme systems such as polyphenol oxidase and pectin methyl esterase, among others, are not affected.”
Asked about probiotics, he said: “Most probiotic microorganisms (strains of lactic acid bacteria) are not significantly inactivated under these processing conditions. These strains of bacteria quickly reach original population levels after HPP.
“These are the primary microbiological determent of the shelf life of HPP products and it is the reason, together with the control of enzyme activity, that HPP products require refrigeration for microbiological and chemical stability and should be considered raw.”
What will this case hinge upon?
But will such technical details be the key to defending this case, or will it hinge upon whether reasonable consumers would consider HPP-treated juices to be 'raw'?
William Dance and Matthew Kaplan, LA-based attorneys at law firm Tucker Ellis LLP, told FoodNavigator-USA that Suja could try to argue that primary jurisdiction applies (ie. the FDA should weigh in on this issue), but noted that at the dismissal stage the case will "most likely hinge upon whose definition of 'raw' seems more reasonable and whether, or how, that can be demonstrated".
They added: "At one end of the spectrum is plaintiff; her definition is based on the views espoused by believers in 'raw foodism'... At the other extreme is the view that raw simply means not cooked. By all accounts, defendant’s products fall somewhere in between; its juice blends are not cooked, but neither are they totally unprocessed."
However, Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP, argued that consumers generally understand 'raw' to mean unheated, adding: "No reasonable consumer could think that packaged juices are not processed in any way."
The judge, she said, should take inspiration from Pelayo v. Nestle USA Inc., et al (2:13-cv-0521), in which the court dismissed with prejudice 'natural' allegations concerning Nestle's Buitoni pastas, "finding no reasonable consumer could think that the products sprung from ravioli trees or tortellini bushes".
What is high pressure processing?
HPP allows products to be treated in their final packaging, with flexible containers carrying the product into a high-pressure chamber, which is flooded with cold water and pressurized.
The pressure causes lethal damage to the cellular structure of bacteria, molds and yeasts, but maintain colors, textures, flavors and nutrients that can be damaged by heat treatment, enabling firms to significantly increase the shelf-life of products and retain their ‘clean-label’ credentials by avoiding additives.
While the capex costs can be high for smaller manufacturers to buy their own HPP equipment, a toll manufacturing infrastructure has built up whereby several companies will feed product into a central HPP facility, said Manny Picciola, managing director and partner in L.E.K. Consulting's Chicago office.
“I think we’re just at the tip of the iceberg in terms of the potential for this technology. It’s being used in everything from guacamole to deli meats, juices and petfood. But the Holy Grail application is probably ground beef.”
Plaintiff Rebecca Heikkila, who seeks to represent a nationwide class, alleges violation of the Magnuson Moss Warranty Act, breach of express warranty, breach of the implied warranty of merchantability, unjust enrichment. She also seeks to represent a sub-class of California consumers, and alleges violation of the state’s Consumers Legal Remedies Act, its Unfair Competition Law, and False Advertising Law.
Suja told us on Monday night that it had "not been served", adding: "If and when if we are, we will submit a comment at that time."
The case is Heikkila v Suja Life LLC (3:14-cv-00556 ) filed in the US District Court, Northern District of California.
*Asked whether having 'fresh' in your brand name could be problematic if you make HPP-treated juices, the FDA said if could not comment on individual brands or companies, but said: "If the use of the term 'fresh' in a brand name suggest/implies that the food is unprocessed or unpreserved, the requirements in 21 CFR 101.95(a) would apply."
A spokeswoman for Starbucks (which owns the Evolution Fresh brand), told us: "Our juices are clearly labeled as being high pressured processed, and we do not market them to suggest otherwise."
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