Civil litigation against Greek yogurt giant Chobani over its use of the term ‘evaporated cane juice’ to describe sugar (dried cane syrup) is about to move into a new phase with a second amended complaint in the Kane v Chobani case due today.
Three near-identical lawsuits were filed against Chobani earlier this year over its use of the term ‘evaporated cane juice’, along with other alleged examples of misleading labeling.
The first, Kane v Chobani, was filed in the northern district of California on May 14 by Pratt & Associates LLP.
The second, Bernaz v Chobani, was filed in New York on June 6 by Faruqi & Faruqi LLP.
The third, Rosales v Chobani, was filed in the southern district of California on August 22 by Bonnett, Fairbourn, Friedman & Balint.
Attorney: The litigation is alive and well.
The Bernaz complaint was voluntarily dismissed in August while the Rosales complaint was voluntarily dismissed in September.
Patricia Syverson, the attorney representing Arianna Rosales, had previously filed court documents stating that her client was considering whether to join a "related" case, although Foodnavigator-USA has not been able to confirm that she has now team up with the Kane suit.
However, Faruqi & Faruqi attorney Adam R. Gonnelli confirmed that his client had joined the Kane suit: “The litigation is alive and well. As the Kane case was making similar claims we dismissed ours and joined forces with them. We’re working on a [second] amended complaint now.”
Chobani will have until November 12 to respond to Kane's second amended complaint, which is due to be filed today.
FDA: It’s false and misleading to call sweeteners from sugar cane syrup ‘evaporated cane juice’
Kane’s latest (amended) complaint, filed August 30, said Chobani’s yogurt was misbranded because it used the term ‘evaporated cane juice’ on its ingredients list to describe dried syrup from cane sugar, despite the fact that the FDA has repeatedly told companies not to use the term in warning letters and produced draft guidance to this effect.
“The Nutrition Facts for Chobani’s Greek Yogurt, Pomegranate flavor, state that it has 19g of sugar, but the ingredient section fails to list ‘sugar’ or ‘dried cane syrup’ as an ingredient”, observed the complaint.
“Instead, it lists ‘evaporated cane juice’ as an ingredient despite the fact the FDA has specifically warned companies not to use this term because 1) it is ‘false and misleading’; 2) it violates a number of labeling regulations designed to ensure manufacturers label their products with the common and usual names of the ingredients they use…; and 3) the ingredient in question is not a juice.
“In other marketing literature, Chobani represents that evaporated cane juice is ‘a natural type of unrefined sweetener’ and fails to disclose the fact that evaporated cane juice is, in its ordinary and commonly understood terms, sugar and/or dried cane syrup.”
Finally, Chobani’s use of the term ‘all-natural ingredients’ is also misleading because it uses color additives in its products, even though they are from natural sources, said the complaint.
“21 C.F.R. § 70.3(f) makes clear that ‘where a food substance such as beet juice is deliberately used as a color, as in pink lemonade, it is a color additive’. Similarly, any coloring or preservative can preclude the use of the term ‘natural’ even if the coloring or preservative is derived from natural sources.”
A Chobani spokeswoman said that Chobani is committed to transparency and stands by all of its products and label claims. As for evaporated cane juice, she said: “The FDA guidance is just that: guidance. It is not legally enforceable.”
Speaking to FoodNavigator-USA at the FNCE conference and expo in Philadelphia this week, cardiologist and food industry consultant Dr James Rippe said the term 'evaporated cane juice' was very misleading.
While it might sound more consumer-friendly or healthy, it is still sugar, he said.
Chobani: We stand by all of our products
Sales growth at Chobani, which has a plant in New York State and is aiming to open a second plant in Twin Falls Idaho before the end of this year, has been nothing short of meteoric in recent years.
The firm, which only started producing Greek yogurt in 2007, now commands a 20.6% dollar share of the overall US yogurt market compared with 13.9% this time last year, claimed the spokeswoman.
“The yogurt category is really exciting right now. It’s the first time we’re seeing significant growth in what’s been historically a sleepy category.”
Some rival products aren’t authentic…
But she added: “When our CEO first launched his products his vision was that everyone deserves access to high-quality authentic Greek yogurt. A lot of people said American consumers don’t want this kind of product, but we’ve seen amazing growth and a lot of competing Greek and Greek-style yogurts coming to market.
“But some of the products aren’t authentic, they are not thick and creamy because they are strained, but because manufacturers are adding thickeners and stabilizers and milk protein concentrates (MPCs), which in our opinion is to the detriment of the category.”
While there is no legal definition of Greek yogurt, and the FDA has ‘stayed’ sections of its regulation on yogurt standards of identity that exclude the use of MPCs, it was frustrating, she claimed.
“If consumers have not tried authentic Greek yogurt before, you want them to have the best experience.”
Asked about its plans for Canada, where bosses plan to build North American factory number three, she said: “We’re very committed to Canada, our Canadian fan base wants Chobani yogurts, but we have faced significant delays in our expansion plans due to litigation.”