Following the release of U.S. Food and Drug Administration (FDA) final guidance finding that “evaporated cane juice” (ECJ) should be labeled as “sugar” on food products, Lifeway Foods has filed a motion arguing that the May 2016 rule should not affect the outcome of a consumer’s lawsuit against the company arguing it mislabeled its kefir smoothies. Figy v. Lifeway Foods Inc., No. 13-4828 (N.D. Cal., San Francisco Div., motion filed June 13, 2016). The case is one of many stayed or dismissed without prejudice awaiting FDA guidance after the agency announced it would reconsider the issue in March 2014.

In its motion, Lifeway argues that the guidance is “intended to advise” and “does not establish any rights for any person and is not binding on the FDA or the public.” “The Guidance has no more bearing on Plaintiff’s claims under California’s consumer protection statutes than it has on his common law claims,” the motion argues. “While the Guidance offers the FDA’s ‘current thinking’ that use of the term ECJ ‘is not the common or usual name of any type of sweetener and that this ingredient should not be declared on food labels as ‘sugar,’’ the Guidance offers no support for the plausibility of Plaintiff’s claim of reliance. In particular, while the Guidance concludes that products containing ECJ should be labeled with the term ‘sugar,’ the Guidance does not provide any basis by which to conclude that a health-conscious consumer, who admitted to reading Lifeway Foods’ labels to avoid added sugar, could plausibly read a label listing ECJ as an ingredient and fail to understand that the product contains added sugar, absent some allegation regarding what he believed ECJ to be if not sugar.”