Posted June 5, 2014
In 2009, the Food and Drug Administration (FDA) told manufacturers to not use the term “evaporated cane juice (ECJ),” because it could give the impression that a product does not contain added sugar, according to an article on Lexis Nexis By Stefanie Jill Fogel and Mary B. Langowski available here. National Law Review also posted an article available here and Law Fuel available here. A previous article was posted on the blog here.
The Grocery Manufacturers Association and several other industry members claim the FDA’s view of the term was expressed in good faith, but it has opened the industry up to lawsuits and “caused chaos for manufacturers.”
Plaintiffs are alleging that the term “evaporated cane juice” is misleading, because it disguises the fact that sugar is an ingredient. They argue that the ingredient should be identified as “sugar.” An earlier draft guidance issued by the FDA proposed that the ingredient should be called “dried cane syrup,” which is still not “sugar,” and invited the public to comment on the issue, according to Law Fuel.
Six courts issued opinions that involved the application of the primary jurisdiction doctrine to ECJ claims, according to National Law Review.
The primary jurisdiction doctrine allows courts to stay or dismiss a complaint without prejudice if the resolution of an issue is within the special competence of an administrative agency. As a result of this doctrine, many defendants have moved to dismiss ECJ claims.
Some companies have changed their labels to comply with the FDA, while others are waiting for FDA’s final position, according to Lexis Nexis.
For more information on food labeling, please visit the National Agricultural Law Center’s website here.
Share: