California Court Issues Sweet Defense Decision for Sugar-Coated Class Actions

A U.S. District Court Judge has stayed a class action lawsuit claiming that a juice maker misled consumers by using the term “evaporated cane juice” instead of “sugar” on its label following the March 5th reopening of the comment period on the FDA’s draft guidance on the issue.

“Evaporated Cane Juice,” a sweetener frequently listed as an ingredient on food labels, has recently been the subject of numerous class action lawsuits.  Plaintiffs in these cases allege that using the term “evaporated cane juice” (“ECJ”) on a food label is a violation of federal and state consumer protection laws.  As of January 22, 2014, there were over fifty cases pending in federal courts with ECJ claims.

In 2009, the Food and Drug Administration (“FDA”) issued draft guidance suggesting that the term “evaporated cane juice” should not be used on food labels for sweeteners derived from sugar cane syrup because such sweeteners did not fit the definition of “juice” as defined in 21 C.F.R. 120.1(a).  Draft Guidance for Industry: Ingredients Declared as Evaporated Cane Juice; Availability, 74 Fed. Reg. 51, 610 (Oct. 7, 2009).  Although the FDA never finalized the 2009 guidance, they routinely invoked it in warning letters to food and beverage companies.

 In early March of 2014, in the midst of the ECJ class action explosion, the FDA announced that it would reopen the comment period for its draft guidance on ECJ to better understand the sweetener and how it is manufactured.  Plaintiffs in ECJ cases have argued that the 2009 draft guidance established an enforceable standard for use of the term.  Defendants, on the other hand, have argued that the 2009 draft guidance did not create an enforceable standard because it was never finalized.  Furthermore, they maintain that the FDA has exclusive authority to establish a standard, and, as the FDA’s exercise of that authority is ongoing, courts should defer to FDA under the ‘primary jurisdiction’ doctrine.

On March 25, 2014, the U.S. District Court for the Northern District of California (also known as “The Food Court”) became the first court to stay ECJ litigation based on the primary jurisdiction doctrine and the reopening of the FDA’s comment period.  Reese v. Odwalla, Inc., No. 13-CV-947-YGR (N.D. Cal. 3/25/14).  In her opinion, Judge Yvonne Gonzalez Rogers agreed with the defendants that “the FDA’s action clearly indicates that the agency is exercising its authority in this area.”  Id. at 8.  Courts in food labeling cases have regularly applied the primary jurisdiction doctrine to dismiss cases involving labeling where the FDA has an ongoing administrative proceeding.  In Ivie v. Kraft Foods Global et. Al, for example, Judge Ronald M. Whyte of the Northern District of California dismissed a claim because the FDA was in the process of redefining the serving size for breath mints. Ivie et al. v. Kraft Foods Global Inc. et al., No. 5:12-cv-02554 (N.D. Cal. 5/28/2013).  Although it seems likely that other courts will follow Reese and stay these cases pending FDA guidance, they may eventually be forced to decide the cases if the FDA takes too long to promulgate the draft guidance.

After it reviews the received comments, the FDA has stated that it “intend[s] to revise the draft guidance, if appropriate, and issue it in final form, in accordance with FDA’s good guidance practice regulations in 21 CFR 10.115.”  Although the comment period will end on May 5, 2014, it could take years for the FDA to issue final guidance.

The information herein is provided for consumer educational purposes only.  The statements contained herein are general statements of law, as of the date stated, and there may be exceptions that are not set forth below, or changes due to later legislative developments and/or newer case law.  The Nicolson Law Group does not suggest that any provision contained herein will or must apply to any specific issue or case.  For legal information and advice for any particular matter, you are encouraged to consult advice from one of Nicolson Group’s licensed attorneys.