On Wednesday, the FDA issued guidance on the use of the phrase “evaporated cane juice” in order to “enhance consumers’ ability to make informed choices among sweeteners by promoting accurate and consistent labeling.” In an opinion that will have far-reaching implications in the food industry, the FDA concluded that “the term ‘evaporated cane juice’ is false or misleading because it suggests that the sweetener is a ‘juice’ or is made from ‘juice’ and does not reveal that its basic nature and characterizing properties are those of a sugar.”
In recent years, food manufacturers have used the phrase “evaporated cane juice” to describe sweeteners made from the fluid extract of sugar cane on food labels. Alleging that the term incorrectly gives the appearance that there is either no sugar in the product, or that any sweetener in the product is from a natural source, there have been a rash of consumer class actions claiming that this phrase is false and misleading.
On March 5, 2014, the FDA announced it was reopening the comment period on its 2009 proposed guidance of the phrase, to get more information about “how the ingredient sometimes declared as ‘evaporated cane juice’ is produced, what its basic nature and characterizing properties are, and how it compares with other sweeteners made from sugar cane.” In response, many evaporated cane class actions were either stayed or dismissed pending the FDA’s determination based on primary jurisdiction concerns.
Now, after the FDA’s declaration that “[s]weeteners 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 from or contain fruit or vegetable ‘juice’…” we expect to see a large uptick in false advertising litigation regarding food labels using the phrase and food manufacturers and retailers should act quickly to change their labels. The FDA announced that it “would not object to the use of stickers” to correct the problem before formal label changes are possible, and this may be the quick stopgap businesses are looking for to stem the inevitable tide of litigation.
This guidance follows the FDA’s recent announcement that it is accepting public comment on the meaning of the term “natural” on food labels. Although it may be a few years before the FDA issues formal guidance on the definition (if at all), the tone of the evaporated cane juice guidance might be a signal of things to come.