Living Harvest named in class action over products containing evaporate cane juice

Living Harvest

Living Harvest advertises and markets many of its Products as having evaporated cane juice, an unlawful term that is merely a false and misleading name for another less healthy food or ingredient that has a common or usual name, namely sugar. By using the term evaporated cane juice, Living Harvest is concealing the fact that it is adding sugar to its Products.

According to the complaint, Living Harvest engaged in a uniform campaign through which it purposefully misrepresented and continues to purposefully misrepresent to consumers that its Products contain ECJ even though “evaporated cane juice” is not “juice” at all—it is nothing more than sugar, cleverly disguised. Defendant conceals the fact that its Products have added sugar by referring to the sugar as ECJ, a “healthy” sounding name made up by the sugar industry years ago to sell sugar to “healthy” food manufacturers for use in their consumer products. ECJ is not the common or usual name of any type of sweetener, or even any type of juice, and the use of such a name is false and misleading. Living Harvest uniformly lists ECJ as an ingredient on its Products, as well as on its website and other promotional material.

Class: Plaintiff brings this consumer class action on behalf of herself and all other persons who, from October 22, 2009 up to and including the present (the “Class Period”), purchased in Florida for consumption Products listing Evaporated Cane Juice (“ECJ”) in the ingredients

The lawsuit and those similar naming other product that contain evaporated cane juice are based, in part, on FDA industry guidance which advised that:

[T]he term “evaporated cane juice” has started to appear as an ingredient on food labels, most commonly to declare the presence of sweeteners derived from sugar cane syrup. However, FDA’s current policy is that sweeteners derived from sugar cane syrup should not be declared as “evaporated cane juice” because that term falsely suggests that the sweeteners are juice…

“Juice” is defined by 21 CFR 120.1(a) as “the aqueous liquid expressed or extracted from one or more fruits or vegetables, purees of the edible portions of one or more fruits or vegetables, or any concentrates of such liquid or puree.” … As provided in 21 CFR 101.4(a)(1), “Ingredients required to be declared on the label or labeling of a food . . . shall be listed by common or usual name . . . .” The common or usual name for an ingredient is the name established by common usage or by regulation (21 CFR 102.5(d)). The common or usual name must accurately describe the basic nature of the food or its characterizing properties or ingredients, and may not be “confusingly similar to the name of any other food that is not reasonably encompassed within the same name” (21 CFR 102.5(a))…

Sugar cane products with common or usual names defined by regulation are sugar (21 CFR 101.4(b)(20)) and cane sirup (alternatively spelled “syrup”) (21 CFR 168.130). Other sugar cane products have common or usual names established by common usage (e.g., molasses, raw sugar, brown sugar, turbinado sugar, muscovado sugar, and demerara sugar)…

The intent of this draft guidance is to advise the regulated industry of FDA’s view that the term “evaporated cane juice” is not the common or usual name of any type of sweetener, including dried cane syrup. Because cane syrup has a standard of identity defined by regulation in 21 CFR 168.130, the common or usual name for the solid or dried form of cane syrup is “dried cane syrup.”…Sweeteners derived from sugar cane syrup should not be listed in the ingredient declaration by names which suggest that the ingredients are juice, such as “evaporated cane juice.” FDA considers such representations to be false and misleading under section 403(a)(1) of the Act (21 U.S.C. 343(a)(1)) because they fail to reveal the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups) as required by 21 CFR 102.5. Furthermore, sweeteners derived from sugar cane syrup are not juice and should not be included in the percentage juice declaration on the labels of beverages that are represented to contain fruit or vegetable juice (see 21 CFR 101.30).

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