Evaporated Cane Juice Case Evaporates (For Now)

By Ricardo Carvajal –

A putative class action targeting certain food products that declare “evaporated cane juice” (ECJ) as an ingredient was recently stayed based on the doctrine of primary jurisdiction.  As noted by the Court, prior decisions have gone both ways on the question of whether deferral under the primary jurisdiction doctrine is appropriate in cases alleging that the use of “evaporated cane juice” as an ingredient name is false and misleading.  What makes this decision noteworthy is its reliance on the fact that FDA recently reopened the comment period on its 2009 Draft Guidance, titled Ingredients Declared as Evaporated Cane Juice. The Court explained:

Leaving aside the question of whether the Court can properly determine, in the first instance, if ECJ is or is not the “common or usual name” of this ingredient, the FDA’s action clearly indicates that the agency is exercising its authority in this area. In light of the fact that FDA has revived its review of the ECJ issue, the Court finds that the FDA’s position on the lawfulness of the use of that term is not only. . . “not settled,” it is also under active consideration by the FDA. Any final pronouncement by the FDA in connection with that process almost certainly would have an effect on the issues in litigation here.

The Court stayed the action until August 1, at which time it expects an update from the parties on the status of FDA’s action.  It remains to be seen whether other courts presiding over similar lawsuits will follow the Court’s lead.