Will the Food and Drug Administration finally take a stance on the term “evaporated cane juice”?

One federal court in California thinks so and has stayed litigation accusing Odwalla of false advertising by using the terms “evaporated cane juice” or “organic evaporated cane juice” in lieu of sugar or cane syrup on product labels for the company’s juices and snacks.

Plaintiff Robin Reese alleged the term violates California’s Sherman Law, as well as the state’s false advertising and unfair competition laws, by misbranding Odwalla products (such as a chocolate protein monster drink and a strawberry pomegranate superfood bar) with the term “evaporated cane juice” instead of sugar or cane syrup. Odwalla responded with a motion to dismiss.

The court granted the motion to dismiss in part and stayed the case pending guidance from the FDA, which recently revived its efforts to regulate the term. On March 5, 2014, the agency published a Notice that reopened the comment period on its October 2009 draft guidance for evaporated cane juice. The 2009 guidance suggested that “evaporated cane juice” was not a “common or usual name for any type of sweetener” and therefore should not be used. However, the FDA also stated that the guidance “should only be viewed as recommendations,” was nonbinding, and was not legally enforceable.

Among the questions posed in the notice are: “How is ‘evaporated cane juice’ manufactured?” and “Does the name ‘evaporated cane juice’ adequately convey the basic nature of the food and its characterizing properties or ingredients?”

The comment period ends May 5, after which the FDA intends to revise the draft guidance, if appropriate, and issue it in final form. Accordingly, U.S. District Court Judge Yvonne Gonzalez Rogers invoked the FDA’s primary jurisdiction doctrine to stay proceedings on this issue until August 1 so the court can review the FDA’s action and rule appropriately.

To read the order in Reese v. Odwalla, click here.

To read the FDA’s Federal Register notice, click here

Why it matters: The rationale for staying the litigation was twofold: (i) the FDA has comprehensive regulatory authority in this area, and (ii) the FDA clearly intends to exercise its authority in the area. If the FDA makes changes to the 2009 guidance, the landscape for litigation over food labeling could be dramatically altered.