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 An earlier draft guidance issued by the FDA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.
