Posted March 7, 2014
 
The U.S. Food and Drug Administration (FDA) is reopening the comment period on its draft guidance for industry on declaring “evaporated cane juice” as an ingredient on food labels, according to an FDA Constituent Update available here.  The Federal Register notice is available here.
 
The draft guidance states FDA’s view that sweeteners derived from cane syrup “should not be listed on food labels as evaporated cane juice because the sweetener is not juice as juice is defined in Federal regulations (Title 21 of the Code of Federal Regulation, Section 120.1(a).” 
 
FDA is reopening the comment period to obtain additional data and information to better understand: “(1) the basic nature and characterizing properties of the ingredient in question; (2) the method of production of this ingredient; and (3) the difference between this ingredient and other sweeteners made from sugar cane.”
 
The comment period will end on May 5, 2014.
 
The term “evaporated cane juice” (ECJ) has been the subject of numerous food labeling class action lawsuits, according to an article by Forbes available here.
 
Plaintiffs in ECJ cases argue that the draft guidance and the warning letters established an FDA standard of the use of the term.  Defendants, on the other hand, argue that establishing the correct terminology is within the exclusive purview of FDA, and “because exercise of that authority is ongoing, courts should defer to FDA under the prudential ‘primary jurisdiction’ doctrine.”

 

For more information on food labeling, please visit the National Agricultural Law Center’s website here and here.