WhiteWave Foods has filed a motion to dismiss the latest in a “tsunami of lawsuits” alleging consumers are being misled by the use of the term ‘evaporated cane juice’ (ECJ) to describe dried sugar cane syrup (aka sugar).
Colorado-based WhiteWave - which sells Horizon Organic dairy products, and almond-, coconut- and soy-based products under the Silk brand - says the suit (filed in California on April 29 by plaintiffs Alex Ang and Kevin Avoy) is precluded by a recent settlement struck in Florida over “nearly identical” litigation.
‘This case was over before it started’
Ang and Avoy were both members of a class bound by this $800,000 settlement (Singer v. WWF Operating Co., No. 13-CV-21232), in which WhiteWave agreed to give class members a partial refund and replace the term ‘evaporated cane juice’ with ‘organic cane sugar’ or ‘cane sugar’, claimed WhiteWave.
“Yet 10 days after the court in Florida preliminarily approved the class settlement… and enjoined any class members from filing related lawsuits, Plaintiffs filed the instant action, alleging substantially the same claims—with a couple new twists—against substantially the same defendants”, said WhiteWave.
“This case was over before it started”, added Whitewave, which denied any liability as part of the recent settlement.
“But even if they were allowed to get to the merits of their claims, these baseless allegations should be dismissed as a matter of law”, added the firm.
“In hoping to force WhiteWave Foods to call ECJ something else, it could not be clearer that this lawsuit is an attempt to step into the shoes of the FDA and impose Plaintiffs’ own misguided interpretations of labeling regulations upon the food industry.”
This lawsuit is an attempt to step into the shoes of the FDA
Since ECJ became available commercially in the 1990s, it has appeared on thousands of food labels, said WhiteWave.
“Its widespread use is, unsurprisingly, most prevalent in healthy foods at the industry’s vanguard, stirring no controversy until this recent tsunami of lawsuits was filed.”
ECJ - which is made by extracting the juice from sugar cane and then evaporating or removing the water - has a “lower impact on taste profiles and food coloration” than “common refined sugar”, and cannot be made from sugar beets, claimed WhiteWave.
‘Evaporated cane juice is little different than added white sugar’
There have been several lawsuits filed in the last 15 months alleging firms including Chobani and Trader Joe’s have misled consumers by using the term ‘evaporated cane juice’ to conceal added sugars.
Plaintiffs in these cases note that the FDA has sent out multiple warning letters and produced draft guidance specifically telling food manufacturers not to use the term ‘evaporated cane juice’ because it is “false and misleading” and is not in fact a juice.
In a lawsuit filed against Chobani by Californian plaintiff Katie Kane last year, Kane notes that: “In truth, evaporated cane juice is little different than added white sugar.”
Chobani: To any reasonable consumer, the word 'cane' in the ingredient list indicates a sweetener ingredient
In a motion to dismiss Kane's lawsuit, Chobani said that the FDA's 2009 guidance advising firms not to use the term evaporated cane juice is "a draft" and "non-binding" from a legal perspective.
It added: "To any reasonable consumer (and especially a consumer with the apparent concerns over the source of sugars these plaintiffs allegedly had), the word 'cane' in the ingredient list indicates a sweetener ingredient.
“This is particularly true for plaintiffs who allege that they knew “dried cane syrup” was a sweetener ingredient and, therefore, cannot plead ignorance about evaporated cane juice."