The class action* - filed on April 23 by Missouri plaintiff Lois Bryant - is the latest in a series of lawsuits in which plaintiffs argue ECJ is just a euphemism for sugar and that manufacturers only use it on labels because it sounds healthier/more natural and conceals the fact they are adding sugar to their products.
The complaint also cites draft guidance issued by the FDA in 2009 advising firms not to use the term ECJ because it is “false and misleading” and says Whole Foods is only using the term to "disguise" the fact it's adding sugar to its nutmeal raisin cookies.
WFM: What does the plaintiff think ECJ is?
But in court papers filed on July 2, Whole Foods insisted shoppers were not being misled, adding: "The plaintiff contends without support that evaporated cane juice is something other than what it plainly means: an added sweetener derived from sugar cane".
It also pointed out that its cookie labels “prominently disclosed both the total amount of sugar and the existence of added sugar by separately identifying brown sugar as an ingredient in addition to ECJ”.
Consumers, meanwhile, intuitively “associate the word ‘cane’ with ‘sugar cane’ and thus know it to be a sweetener”, it claimed: “The complaint contains no factual allegations regarding what the Plaintiff (or any other consumer) thought ECJ to be if not a sweetener.”
Finally, as the cookies were private label products, it was hard to argue that they “commanded a premium price, much less a premium specifically attributable to ECJ”, it said, noting that “virtually all” ECJ-related lawsuits had been dismissed or put on ice [citing the FDA's primary jurisdiction in the matter] following the FDA’s March 2014 announcement that it planned to revisit its 2009 draft guidance.
However, the FDA draft guidance still leaves manufacturers exposed, says the GMA, which last year urged the FDA to bring an end to the uncertainty and simply “declare evaporated cane juice as the name for the ingredient”.
The draft guidance, which isn’t legally binding but is still cited in scores of false advertising lawsuits, had caused widespread confusion and a ‘tsunami’ of litigation, said the GMA:
“It has created the potential for a significant degree of chaos among sweetener providers, food manufacturers, retailers and consumers."
Similarly, the FDA’s failure to issue finalized guidance in a timely manner after its March 2014 announcement has prompted frustration in the courts as confusion over whether manufacturers should or shouldn’t use the term ECJ continues to abound (click HERE).
What is evaporated cane juice?
But what is evaporated cane juice, and is the term inherently misleading?
In a statement submitted to the court in a lawsuit over ECJ labels last year, Michael DeLuca, VP of specialty ingredients at Domino Sugar, explained that ECJ is "entirely distinct from what is commonly known as refined sugar".
He added: "The plaintiffs say the industry uses ECJ as a euphemism for sugar. This is incorrect...During the entire time that it has been on the market, ECJ has been considered entirely distinct from what is commonly known as refined sugar. ECJ has a distinct darker appearance because it is not decolorized, as is refined sugar. ECJ has distinct taste and smell characteristics. Further, ECJ has nutrients and other inherent constituents that do not exist in refined sugar.”
Attorney: So consumers 'just know' ECJ is sugar?
However, consumer groups argue that ECJ - which is a crystalized sugar, not a juice - does not differ from regular sugar in any meaningful way as it has the same number of calories, is processed by the body in the same way, and you'd have to eat huge amounts of it in order to get useful levels of the minerals it contains.
Food law attorney Steve Gardner, meanwhile, said he was bemused by Whole Foods' logic.
Evaporated cane juice
The term 'evaporated cane juice' implies that firms merely squeeze out the juice from sugar cane and evaporate it, says non-profit nutrition education group Processed-Free America, when in fact they have to clarify and filter the juice to remove solids, heat it with steam and concentrate it into a syrup; seed it with tiny sugar crystals, boil it to form a mixture of crystals and molasses, and then put it in a centrifuge to spin out the molasses before the golden crystals are dried and packed.
Gardner - who heads the food law practice at the Stanley Law Group of Dallas, Texas - noted in a blog post: "Whole Foods filed a motion to dismiss a lawsuit over the chicanery of its using the FDA-Disapproved term "Evaporated Cane Juice" instead of calling it what it is, "Sugar," because consumers intuitively understand that evaporated cane juice is sugar.
"I assume Whole Foods will put on consumer evidence from a wishing well and a Ouija board as well as this baldfaced assertion, which begs the question why Whole Foods didn't just call it sugar so that its consumers don't have to rely on their intuitions."
FDA: We're on the case
An FDA spokesman told FoodNavigator-USA: "We are working to finalize our draft guidance for industry titled 'Ingredients Declared as Evaporated Cane Juice.' We do not have a firm date for publication at this time."
*The case is Lois Bryant et al v Whole Foods Market Group Inc 4:15-cv-01001 filed in the eastern district of Missouri on April 23, 2015.