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FDA consideration of “Evaporated Cane Juice” stops class action (for now)

March 31, 2014


On March 7, 2014, we reported that the FDA reopened the comment period as to whether Evaporated Cane Juice (“ECJ”) is an appropriate description to include on a food label.  At that time, at least one court had asked parties in a punitive class action to provide supplemental briefs regarding the effect of the FDA’s reopening of the comment period.  Reese v. Odwalla, Inc., No. 13-CV-947-YGR (N.D. Cal. 3/6/14) (directing parties to submit supplemental briefs).  A number of plaintiffs contend that ECJ is an improper term to include on a food label because it is nothing more than sugar.  Because federal regulations generally require labeling ingredients by their common or usual name, these plaintiffs argue that labels with “ECJ” violate federal requirements and California consumer protection laws.  See 21 U.S.C. § 341(i); 21 C.F.R. § 101.4(a)(1).

Following that supplemental briefing, the Reese court recently stayed the

FDA Re-Opens Comment Period Regarding “Evaporated Cane Juice”

March 7, 2014


A number of putative class actions argue that using “Evaporated Cane Juice” (“ECJ”) on food labels is deceptive because that ingredient is nothing more than sugar.  Under the primary jurisdiction doctrine, courts will defer to regulatory agencies that have particular expertise and responsibility for enforcing the law or overseeing an industry.  In many food labeling cases, the defendants argue that courts should defer to the Food & Drug Administration’s oversight.  The Northern District of California is the most active forum for food labeling class actions, and judges in that district have reached different conclusions as to whether the primary jurisdiction doctrine applies to such ECJ claims.  In March 2014, the FDA reopened the comment period as to whether ECJ is an appropriate description to include on a food label.  This development should help ECJ class action defendants, at least in the near term.

Until now, many

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