A week after Judge Yvonne Gonzalez Rogers stayed a class action against Odwalla over its use of the term ECJ on food labels, fellow district judge Susan Illston has dismissed a similar case against organic beverages maker Santa Cruz Natural Inc without prejudice.
In her April 2 order, judge Illston said the FDA’s March 5 decision to re-open comments on its 2009 draft guidance on ECJ (which advises firms NOT to use the term on labels) could have a direct bearing on the lawsuit, given that the agency may shortly issue finalized guidance on ECJ.
She added: “Courts find it particularly appropriate to defer to an agency when, as is true here, the agency is in the process of making a determination on a key issue in the litigation… The court finds it appropriate to dismiss the action without prejudice pursuant to the doctrine of primary jurisdiction.
“The determination of whether ECJ is the common or usual name of the ingredient is best left to the FDA for resolution.”
The suit (Swearingen et al. v. Santa Cruz Natural Inc., # 3:13-cv-04291) filed in September 2013, is just one of a flurry of ECJ-related cases filed against food companies over the past 18 months - many by the same attorney: Ben Pierce Gore of Pratt & Associates.
According to the plaintiffs, food and beverage manufacturers are not just misleading shoppers by using the term ECJ (implying it's healthier than regular sugar) - they are also violating food labeling regulations which say ingredients must be described by their common or usual names (in this case, sugar, or dried cane syrup), and that to call something “juice” it should be “the aqueous liquid expressed or extracted from one or more fruits or vegetables”.
Click HERE to read what leading food law attorneys think the FDA’s decision to re-open comments on its 2009 draft guidance on ECJ means for industry.
Click HERE to read more about evaporated cane juice.
Click HERE to find out what the FDA wants to know about ECJ.