Lifeway Argues ECJ Case Unaffected by FDA Ruling

Following the release of U.S. Food and Drug Administration (FDA) final
guidance finding that “evaporated cane juice” (ECJ) should be labeled as
“sugar” on food products, Lifeway Foods has filed a motion arguing that
the May 2016 rule should not affect the outcome of a consumer’s lawsuit
against the company arguing it mislabeled its kefir smoothies. Figy v.
Lifeway Foods Inc., No. 13-4828 (N.D. Cal., San Francisco Div., motion
filed June 13, 2016). The case is one of many stayed or dismissed without
prejudice awaiting FDA guidance after the agency announced it would
reconsider the issue in March 2014.

In its motion, Lifeway argues that the guidance is “intended to advise”
and “does not establish any rights for any person and is not binding on
the FDA or the public.” “The Guidance has no more bearing on Plaintiff’s
claims under California’s consumer protection statutes than it has on
his common law claims,” the motion argues. “While the Guidance offers
the FDA’s ‘current thinking’ that use of the term ECJ ‘is not the common
or usual name of any type of sweetener and that this ingredient should not be declared on food labels as ‘sugar,’’ the Guidance offers no support
for the plausibility of Plaintiff’s claim of reliance. In particular, while
the Guidance concludes that products containing ECJ should be labeled
with the term ‘sugar,’ the Guidance does not provide any basis by which
to conclude that a health-conscious consumer, who admitted to reading
Lifeway Foods’ labels to avoid added sugar, could plausibly read a label
listing ECJ as an ingredient and fail to understand that the product
contains added sugar, absent some allegation regarding what he believed
ECJ to be if not sugar.”

Issue 608