Last week, a California federal judge revived a putative class action accusing
Amy's Kitchen Inc. of misleading customers by labeling sugar as
"evaporated cane juice" on its products. In a
finding that puts the case on hold until the FDA weighs in, Judge
Illston found that a decision to permanently dismiss the case would
be unjust if the FDA later decides that "evaporated cane
juice" is not an acceptable term for sugar on food
A number of similar lawsuits have sprung up in the last few
years alleging deceptive labeling for use of the term
"evaporated cane juice" rather than sugar. To
support these claims, plaintiffs cite to the FDA's draft guidance, issued in
March 2014, wherein the agency stated that referring to sweeteners
as "evaporated cane juice" is misleading. On the
other hand, defendants in these cases argue that the court should
defer to the FDA, who has yet to issue formal guidelines on the
matter, and dismiss these claims under the doctrine of primary
As Judge Illston's ruling demonstrates, the trend among
courts is to put these cases on ice until the FDA issues final
guidance on the issue. Last October, this space discussed a similar situation where
California courts were staying false advertising suits until the
FDA takes a formal stance on use of the term
"natural." However, the FDA has not taken a
formal, binding stance on the term "natural"
and has officially declined to do so. Here, the FDA
has taken a stance—albeit an informal one—on
"evaporated cane sugar," has re-opened the comment
period on its draft industry guidance, and will likely
issue amended/final guidelines in the near future. So we
expect a different outcome for the "evaporated cane
juice" cases than what we witnessed in the
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