Judge tosses most claims in Whole Foods evaporated cane juice lawsuit

By Elaine Watson contact

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Judge tosses most claims in Whole Foods evaporated cane juice lawsuit

Related tags: Ecj, Sugar

A judge has tossed most of the claims in a class action lawsuit alleging Whole Foods is trying to disguise the use of added sugar in its 365 store brand products by using the term ‘evaporated cane juice’.

The class action* - filed by California-based plaintiff Robert Pratt - is just one of a series of lawsuits in which plaintiffs argue ECJ is just a euphemism for sugar and that manufacturers/retailers only use it on labels because it sounds healthier/more natural and conceals the fact they are adding sugar to their products.

The lawsuit also cites draft guidance​ issued by the FDA in 2009 advising firms not to use the term ECJ because it is “false and misleading​” and says Whole Foods is only using the term to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 wares.

Judge: Plaintiff knew ECJ was an added sugar of some kind

But in an order on the case filed on September 30, US district judge Edward D. Davila said he didn’t buy the plaintiff’s arguments about evaporated cane juice, and dismissed them all without leave to amend.

He added: “First, he alleges he was unaware that ECJ was a sweetener and therefore did not know that the chicken broth, ketchup and instant oatmeal contained any added sugar. Second, he contends he believed ECJ was actually a healthy ingredient because the “j” stands for juice. Third, he states he knew ECJ was a sweetener but thought it was some type of healthy unrefined sugar.”

But none of these theories was plausible, argued the judge.

“In reality,” ​he said, “It makes no sense that Plaintiff, a self-styled ‘health conscious consumer who wished to avoid added sugars” ​would be so clueless, as elsewhere in his testimony he implies he knew ECJ was an unrefined form of added sugar : “Added unrefined sugar is added sugar, no matter how Plaintiff tries to spin it.”

What is evaporated cane juice?

Cut sugar cane stalks

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.

The term 'evaporated cane juice' also 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.

But 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: "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.”

It is implausible that Plaintiff believed ECJ was something healthy

And though he does not explicitly allege it, added the judge, “It simply cannot be that plaintiff thought ECJ referred to bamboo cane, sorghum cane, corn or cane berries as used on labels for chicken broth, ketchup, and instant oatmeal… Suchan allegation suspends reality too thin.

Landscape gavel
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."

Similarly, it is implausible that Plaintiff believed ECJ was something healthy merely because it contains the word ‘juice’ in its name​…. Plaintiff cannot purport to be looking for sugar in ingredient lists but at the same time feign ignorance of common phrases that refer to sugar.”

However, he refused to throw out claims that some Whole Foods products were falsely represented as 'natural' when they contain artificial colors, flavors, or preservatives.

*The case is Robert Pratt v Whole Foods Market California Inc et al 5:12-cv-05652-EJD filed in the Northern District of California.

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1 comment

Names

Posted by Bob Salmon,

why not call sugar dodecacarbon monodecahydrate and everyone will understand you? That can be known as white sugar.

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