Is “Evaporated Cane Juice” just sugar in disguise?

The Food and Drug Administration (“FDA”), in 2009, released draft guidance regarding the listing of “evaporated cane juice” on ingredients lists. The FDA recommended that food companies use the term “dried cane syrup” in lieu of the misleading phrase “evaporated cane juice.” After six years of review, and after much resistance from leading manufacturers of processed foods, the FDA recently released additional guidance on the matter. The FDA May 2016 Industry Guidance, based on public comment, recommended that companies using evaporated cane juice as an ingredient list the ingredient as “sugar” instead of as “evaporated cane juice” or “dried cane syrup.” The FDA’s recommendation rested on two key grounds:

(1) The use of the word “juice” in “evaporated cane juice” is misleading to consumers. 21 C.F.R. 120.1(a) defines “juice” as “the aqueous liquid expressed or extracted from one or more fruits or vegetables, purees of the edible portions of one or more fruits or vegetables, or any concentrates of such liquid or puree.” While “sugar cane is a member of the vegetable kingdom”, the FDA noted, “FDA considers the term ‘vegetable’…to refer more narrowly to edible plant parts that consumers are accustomed to eating as vegetables in their diet.” Therefore, because consumers do not eat sugar cane as a “vegetable”, a product derived from sugar cane is not a “juice,” and therefore labeling that product as “evaporated cane juice” would be a mischaracterization of the properties of that product.

(2) The term “evaporated cane juice” does not describe the basic nature of the ingredient—as a sugar. “The basic nature of the ingredient is that it is a sugar and its characterizing property is that of a sweetener” says the FDA. The FDA pointed to the C.F.R., among other sources, to support their contention that evaporated cane juice is sugar in disguise: “Section 184.1854(a) describes sucrose as the substance ‘obtained by crystallization from sugar cane or sugar beet juice that has been extracted by pressing or diffusion, then clarified and evaporated.’” According to the FDA, numerous comments from the public indicated that evaporated cane juice is produced in the foregoing manner. Therefore, listing evaporated cane juice as anything other than its common or usual name— “sugar”— would be misleading to consumers.

The recent FDA guidance may have a profound effect on current and future class action litigation that challenges the misleading nature of the ingredient identified as “evaporated cane juice.” Many false advertising class action cases that challenged this ingredient were put on hold prior to the release of the recent FDA guidance. The courts were hopeful that that the FDA would provide insight. E.g., see Kane v. Chobani, LLC, No. 5:12-cv-02425 (N.D. Cal. May 14, 2012). If courts now defer to the FDA’s guidance and hold companies accountable for misleading labeling, companies are more likely to immediately make the suggested change or even remove evaporated cane juice from their food products.  

If courts choose to snub FDA guidance, and instead focus their analyses on the “reasonable consumer” standard, companies may feel free to run away with their current labels. Such was the case in the class action case, Pratt v. Whole Foods Market California Inc. et al., No. 5:12-cv-05652 (N.D. Cal. Nov. 2, 2012), where the court overlooked the 2009 draft guidance and instead reasoned that “it makes no sense that Plaintiff, a self-styled health conscious consumer who wished to avoid added sugars” would be so clueless about the basic nature of evaporated cane juice and its health consequences. It will be interesting to see how courts in the future incorporate the FDA’s latest guidance into their analyses.   

Disclaimer: The foregoing in no way constitutes legal advice from any attorney or from Faruqi & Faruqi, LLP. The opinions expressed herein are the opinions of attorney Ben Heikali and in no way reflect the opinions of Faruqi & Faruqi, LLP.