Court Revives and Stays ECJ Suits

A California federal court has granted motions to amend the judgment in
two cases previously dismissed to accord primary jurisdiction to the U.S.
Food and Drug Administration (FDA), each alleging that the defendants
mislabeled their food products as including “evaporated cane juice” (ECJ)
rather than the more common term, sugar. Swearingen v. Santa Cruz Natural
Inc., No. 13–4291 (U.S. Dist. Ct., N.D. Cal., order entered July 1, 2014); Figy v.
Amy’s Kitchen Inc., No. 13–3816 (U.S. Dist. Ct., N.D. Cal., order entered July 7,
2014). The court cited “the unique circumstances,” “the potential prejudice to
plaintiff,” and “the apparent lack of prejudice to the defendant” in amending
its previous decisions to dismiss the cases without prejudice rather than stay
them. The plaintiffs had argued that allowing the dismissal to remain rather
than issuing a stay through the end of 2014 would likely result in the loss of
a year of eligibility if the classes are later certified. Several similar cases have
been dismissed without prejudice as courts await final guidance from FDA on
the use of ECJ on food labels. Additional information about recent ECJ cases
appears in Issues 524 and 525 of this Update.

Issue 529