A California federal court has allowed to proceed a putative class action challenging the use of “evaporated cane juice” (ECJ) on Late July Snacks LLC’s product labels on the grounds that the Sherman Act does not require reliance on allegedly deceptive misrepresentation. Swearingen v. Late July Snacks LLC, No. 13-4324 (N.D. Cal., entered October 16, 2017). The plaintiffs alleged that Late July Snacks, which sells chips and cracker snacks, misled consumers by listing ECJ instead of sugar as an ingredient. The court held that because the plaintiffs had narrowed the class allegations to include only California purchasers and had standing to sue not only on products they purchased but “substantially similar” products named in the complaint, the matter could proceed on the Sherman Act and other state law claims. The court dismissed a claim for an injunction, holding that the plaintiffs had failed to allege they planned to buy the snacks again.

The court previously stayed the case and requested information from the U.S. Food and Drug Administration on whether it would issue guidance on the use of ECJ as a term.

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