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Chobani (finally) prevails in evaporated cane juice lawsuit, but other firms still being targeted

By Elaine WATSON , 27-Feb-2014

A high-profile class action lawsuit accusing Chobani of deceiving consumers with the term ‘evaporated cane juice’ on labels has finally been dismissed with prejudice (ie. the plaintiff can’t re-file and the case is officially closed).

In her February 20 order on a suit first filed in May 2012 (Kane et al v Chobani Inc, No. 5:12-cv-02425), which has been amended three times, California federal judge Lucy Koh said it would be “futile” to allow the plaintiffs to keep pursuing this case.

Among other things, she said, the plaintiffs failed to explain how they “could have realized that dried cane syrup was a form of sugar, but nevertheless believed that evaporated cane juice was not” and have not been able to prove that they relied upon the allegedly fraudulent misrepresentations when they bought the yogurts.

More evaporated cane juice cases are being filed weekly

Chobani - which has repeatedly argued that reasonable consumers would know that "the word 'cane' in the ingredient list indicates a sweetener ingredient" - said it felt vindicated after months of legal wrangling, telling FoodNavigator-USA: 

"We have always been committed to using only natural ingredients and to marketing our products transparently. We are pleased with the Court’s dismissal of this lawsuit.”

However, many other ECJ-related cases are still moving through the courts - including actions against Amazon Preservation Partners, Inc (Zola acai and pomegranate drinks), Healthy Beverage LLC (Steaz Iced Teas), Santa Cruz Natural, Inc (Lemonade Soda, Orange Mango Soda), Late July Snacks (crackers/snack chips), Blue Diamond, Trader Joe’s and Wallaby Yogurt Co - and more are being filed weekly.

Others, meanwhile, have been settled (last year WhiteWave Foods agreed to replace the term ECJ with ‘organic cane sugar’ or ‘cane sugar’ on its products as part of a settlement).

Plaintiff: 'Evaporated cane juice is not juice at all—it is nothing more than sugar, cleverly disguised'

The latest two lawsuits target Reed’s Inc* (kombucha beverages and other products) and Living Harvest Foods** (Hemp milk products), with the latter asserting that “evaporated cane juice is not juice at all—it is nothing more than sugar, cleverly disguised”.

The plaintiff adds that evaporated cane juice is merely “a ‘healthy’ sounding name made up by the sugar industry years ago to sell sugar to ‘healthy’ food manufacturers for use in their consumer products.”

What does the FDA say?

Last year, WhiteWave Foods agreed to settle a proposed class action over its use of evaporated cane juice on product labels (Singer v. WWF Operating Co. No. 13-CV-21232) and agreed to replace the term with ‘organic cane sugar’ or ‘cane sugar’

Plaintiffs in these lawsuits - many of which have been filed by law firm Pratt & Associates- say the FDA has sent out multiple warning letters and produced draft guidance (click here ) specifically telling firms not to use the term ‘evaporated cane juice’ because it is false and misleading and is not a ‘juice’.

They also note that federal regulations instruct that ingredients must be described by their common or usual names, and that to call something ‘juice’ it should be “the aqueous liquid expressed or extracted from one or more fruits or vegetables”.

 *Shaouli v. Reed’s Inc (No. BC534738 Cal. Super., Los Angeles County).

**Miller v. Living Harvest Foods Inc (No. 2014-2735-CA-01 11th Jud. Cir. Court of State of Florida).

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