Evaporated cane juice, a term usually used to inform about sweeteners derived from the fluid extract of sugar cane, is present on the ingredient lists of many products we see on grocery store shelves. However, newly finalized FDA guidance on use of the term “evaporated cane juice” (“ECJ”) as an ingredient in food labels may change things. Specifically:
FDA’s present view is that “such sweeteners should not be declared on food labels as ‘evaporated cane juice’ because that term does not accurately describe the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups) . . . . Moreover, the use of ‘juice’ in the name of a product that is essentially sugar is confusingly similar to the more common use of the term ‘juice’ – ‘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’ (21 CFR 120.1(a)). Thus, the term ‘evaporated cane juice’ is false or misleading because it suggests that the sweetener is ‘juice’ or is made from ‘juice’ and does not reveal that its basic nature and characterizing properties are those of a sugar.”
FDA’s long-awaited final guidance follows its October 2009 draft guidance concerning the use of ECJ in ingredient lists. In its draft guidance, FDA advised that “the common or usual name for the solid or dried form of sugar cane syrup is ‘dried cane syrup,’ and that sweeteners derived from sugar cane syrup should not be declared on food labels as ‘evaporated cane juice’ because that term falsely suggests the sweeteners are juice.” Following publication of the draft guidance, some commenters objected to the term “dried cane syrup” because “cane syrup” is not the starting material or an intermediate step for the ingredient they refer to as ECJ. In its final guidance, FDA does not recommend that ECJ be labeled as “dried cane syrup.”
So what is FDA recommending to food companies?
“Sweeteners derived from sugar cane should not be listed in the ingredient declaration by names such as ‘evaporated cane juice,’ which suggest that the ingredients are made from or contain fruit or vegetable ‘juice’ as defined in 21 CFR 120.1 . . . . [T]he common or usual name for the [evaporated cane juice] product should be or include ‘sugar’ . . . . FDA would not object to the addition of one or more truthful, non-misleading descriptors before the common or usual name ‘sugar.’”
FDA’s guidance comes at a time when allegations that use of the “evaporated cane juice” ingredient term is misleading to consumers, which has been the subject of considerable litigation in recent years. Well-known companies including Chobani, Whole Foods, Trader Joe’s, and Blue Diamond have been sued over their use of the term (see a previous blog post here). In Kane v. Chobani, currently on appeal, the Ninth Circuit stayed proceedings under the primary jurisdiction doctrine until the FDA’s guidance was released. We will soon hear what the Ninth Circuit has to say based upon FDA’s finalized evaporated cane juice guidance. Do not be surprised if plaintiffs who are contemplating ECJ-based mislabeling claims are encouraged by this FDA policy decision.