Two lawsuits challenging the inclusion of “evaporated cane juice” (ECJ) on ingredient lists will continue in light of the U.S. Food and Drug Administration’s (FDA’s) July 2016 nonbinding guidance recommending that “sugar” be listed instead.

A California federal court refused to dismiss a lawsuit against Lifeway Foods alleging its kefir product packaging misled consumers into believing it contained no added sugar by including ECJ in the ingredients list. Figy v. Lifeway Foods Inc., No. 13-4828 (N.D. Cal., order entered August 16, 2016). The court found the plaintiff’s claims to be properly pleaded and was not persuaded by Lifeway’s argument that the expiration dates on the labels attached to the complaint suggested that the products were purchased after the plaintiff knew what ECJ is because the labels were merely examples of the product packaging rather than the specific products the plaintiff purchased. Details about Lifeway’s motion to the court arguing the case is unaffected by FDA’s guidance appear in Issue 608 of this Update.

The plaintiff against Lifeway is also a plaintiff in a similar lawsuit against Santa Cruz Natural Inc., which allegedly uses ECJ on the list of ingredi- ents in its sodas. Swearingen v. Santa Cruz Naturals Inc., No. 13-4291 (N.D. Cal., order entered August 17, 2016). Santa Cruz argued that the plaintiffs included several products in their complaint that do not list ECJ; agreeing, the court dismissed the claims against those products.

“The Court has some reservations as to whether a reasonable consumer would be misled as regarding added sugars in the Lemonade Soda and Ginger Ale Soda,” the court noted. “The ingredients used by Santa Cruz in the Lemonade Soda are listed on the label as: ‘sparkling filtered water, organic evaporated cane juice, organic lemon juice concentrate, organic lemon juice, organic natural lemon flavor.’ [] The label also reveals that the product contains 35 grams of sugar. [] It is unclear that a reasonable consumer would believe that 35 grams of sugar naturally occurs, as plaintiffs allege, in filtered water, lemon juice, or other lemon flavor- ings.” However, the court declined to dismiss the products from the case, noting that two of the beverages at issue included fruit purees that could potentially contain sugars in the amount listed on the product label.