Finding The Sweet Spot: Companies Face Lawsuits Over Evaporated Cane Juice

The accurate labeling of products and food is important. Whether it’s for health, allergies, conscience or preference, consumers have a right to know exactly what goes into the things they buy. Companies, on the other hand, have at times shown a marked desire to hide – or perhaps "rebrand" – certain ingredients if they suspect public opinion is turning against a particular item. Just as the "natural" label – an unregulated term – has become increasingly common in a more health-conscious age, so too "sugar" has become a dirty word in many quarters – and its most common replacement, evaporated cane juice, has been hit with controversy.

Evaporated cane juice lawsuits were quickly filed against a range of companies.

What is evaporated cane juice? It’s a fair question with a confusing answer. Evaporated cane juice (ECJ) refers to the same product as white sugar, minus one refinement. Differences between sugar and ECJ are often minimal (a slightly different amount of vitamins) and the calorific content is comparable. ECJ is often the best choice for vegans, however, as it has not been filtered through "natural charcoal" – including animal bones – as industrially-produced white sugar often has. ECJ is also GMO-free, while "sugar" can refer to beet sugar, a genetically engineered crop in the United States. The term ‘evaporated cane sugar’ may also be used incorrectly to refer to dried sugar cane syrup, a fact that prompted the FDA to publish a draft guidance on the terms that suggests manufacturers avoid using "juice" for fear of misleading the public into believing foods were sugar-free. The recommendations are not currently enforceable, however.

So, to recap – evaporated cane juice is sugar, but not as we know it. And that is what’s getting companies into legal trouble. Lawsuits have been filed by consumers who allege that they were misled by ingredients labels.

In 2012, Chobani faced legal action over its yogurt. Plaintiff Katie Kane claimed that the use of "evaporated cane juice" on the label was misleading and that she would not have bought the company’s Greek yogurt if she had know it referred to sugar. The lawsuit was certified as a class action, and only earlier this year did the company manage to persuade a judge to rule in their favor. On September 19, Judge Lucy Koh granted a motion to dismiss, though she also granted the plaintiff’s request to amend the complaint and re-plead.

For the food industry, however, the flood gates had been opened, and evaporated cane juice lawsuits were quickly filed against a range of companies. Trader Joe’s, Wallaby Yogurt, Blue Diamond, Lifeway, Attune, and Coca Cola subsidiary Odwalla have all been hit with claims that they mislead consumers by using ECJ on labels, while California is currently considering whether use of the term is illegal in its entirety under the state’s Sherman Law

The question of what a consumer might "reasonably" believe ECJ to be has come up more than once. Companies have argued multiple times that ‘evaporated cane juice’ would be understood to mean sugar by most reasonable consumers. Clearly, though, the plaintiffs in the ongoing lawsuits feel differently, and with no real indicator of how judges are likely to rule, manufacturers should be watchful. If use of the phrase is simply an attempt to mask food products’ true ingredients, companies could face costly suits. If they are able to argue that it’s an acceptable and accurate term, then consumers may have to prepare for its more widespread use.

Current consideration of lawsuits has focused more on the question of jurisdiction – with companies claiming federal rules pre-empt lower courts’ jurisdiction – and the actual merits of the cases has yet to receive much detailed attention.

For now, plenty of food products in the United States will continue to list ECJ as an ingredient, and consumers should ensure that they know what’s in the food they’re eating. However, if companies continue their attempts to rebrand popular products, this may take a little more than simply reading the ingredients list.