California Courts Wait for FDA Guidance in Two ECJ Cases
Following similar decisions from courts across the country, two California federal courts have delayed final rulings in cases accusing Kashi and Trader Joe’s of mislabeling their products by using the term “evaporated cane juice” (ECJ) in their ingredient lists rather than simply “sugar,” which the plaintiffs allege is the same substance. Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., order entered August 7, 2014); Saubers v. Kashi Co., No. 13-899 (S.D. Cal., order entered August 11, 2014). In the proposed class action against Kashi, the plaintiffs accused the Kellogg-owned company of “misbranding” more than 75 different food products by listing ECJ instead of sugar on its labels to conceal its inclusion in the foods. The court found that the plaintiffs’ claims relied “heavily, if not entirely, on the premise that the [U.S. Food and Drug Administration (FDA)] has concluded that ‘evaporated cane juice’ is not the common or usual name for any sweetener” based on FDA informal guidance issued in 2009. However, the court said, FDA indicated in March 2014 that it will issue formal guidance on the matter, which “will undoubtedly affect issues being litigated in this action.” Following the primary jurisdiction doctrine, the court dismissed the case without prejudice.
In the putative class action against Trader Joe’s, the plaintiffs also accused the company of mislabeling its products by listing ECJ on its ingredient lists. In addition, they alleged that the food store’s soy milk labels may lead a consumer to believe the milk is dairy and that several of its products contained added chemicals despite claiming otherwise. As in Kashi, the court held that the ECJ claim could be determined by the forthcoming FDA guidance. Rather than dismissing the case, the court ordered a stay for all the claims, noting that “it would be a waste of judicial and party resources to carry out this lawsuit piecemeal.” Additional information about the case appears in Issues 477 and 500 of this Update.