WWF Operating Company, manufacturer of Horizon Organic Milk products, agreed to settle a class action lawsuit alleging the products were mislabeled

 

As alleged in the complaint, numerous products manufactured by the WWF Operating Company, falsely or misleadingly labeled and/or marketed their products by listing Evaporated Cane Juice (“ECJ”) in the ingredients.   The complaint alleges that ECJ is actually sugar (not juice) and therefore the products, were mislabeled.

Settlement Class Members include all persons who, from January 1, 2005 to April 19, 2013 purchased WWF products with evaporated cane juice for personal use including:

Horizon Organic Lowfat Chocolate Milk plus DHA Omega-3

Horizon Strawberry Lemonade Squeeze Tuberz

Horizon Surfin’ Strawberry Tuberz

Horizon Sour Apple Spray Tuberz

Horizon Blueberry Wave Tuberz

Horizon Lowfat Strawberry Milk Box

Horizon Lowfat Vanilla Milk Box

Horizon Lowfat Chocolate Milk Box

Silk Organic Original Soymilk

Silk Organic Vanilla Soymilk

Silk Pure Coconut Original Coconutmilk

Silk Horizon Fat Free Vanilla Yogurt

Additional information on the settlement including how to participate can be found at:  www.SingerECJSettlement.com

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

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).

Yucatan Foods named in class action over misleading consumers by disguising sugar in products as evaporated cane juice

Plaintiff brings this consumer class action on behalf of herself and all other persons who, from May 3, 2009 up to and including the present (the “Class Period”), purchased in Florida for consumption and not resale any of Yucatan’s products listing Evaporated Cane Juice (“ECJ”) in the ingredients.

During the Class Period, Yucatan 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. Further, 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.

Yucatan uniformly lists ECJ as an ingredient on its products, as well as on its website and other promotional material. As a result of these unfair and deceptive practices, Yucatan has collected millions of dollars from the sale of its products with ECJ that it would not have otherwise earned.

According to the FDA’s published policy, “evaporated cane juice” is simply a deceptive way of describing sugar, and therefore, it is false and misleading to dress up sugar as a type of “juice.” In October of 2009, the FDA issued Guidance for Industry: Ingredients Declared as Evaporated Cane Juice, which advised industry and 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…

Despite the issuance of the 2009 FDA Guidance, Yucatan did not remove the unlawful and misleading food labeling ingredient from their mis-branded food products.Such products mislead consumers into paying a premium price for products that do not satisfy the minimum standards established by law for those products and for inferior or undesirable ingredients or for products that contain ingredients not listed on the label.

Yucatan Products & Cabo Fresh Products with ECJ include: Authentic Guacamole, Mild Guacamole Organic-Mild Guacamole, Organic Guacamole Avo-Hummus, Spice Guacamole Mild Salsa, Ranch Guacamole Medium Salsa, Hummus Guacamole Bruschetta, 2 oz. Singles Guacamole, Guacamole Twinpack

Odwalla & Coca Cola sued for false advertising

Defendant Odwalla is a leading consumer packaged food and beverage company that manufactures, markets, distributes, and sells branded beverages and food bars throughout the United States. Defendant Coke is the parent company of Odwalla which distributes and sells a number of brands of beverages including the Fanta line of beverages.

As alleged, Defendants know that many of their consumers wish to maintain a diet comprised of healthy foods that do not contain added sugar. Defendants recognize that consumers are willing to pay a premium for such healthy foods, and Defendants actively promote the health benefits of their products.

Defendants currently market many different flavors and varieties of energy bars and beverage products which list either “Evaporated Cane Juice” or “Organic Evaporated Cane Juice” as an ingredient. These products include: Odwalla White Chocolate Macadamia Chewy Nut Bar, Odwalla Chocolate Almond Coconut Chewy Nut Bar, Odwalla Apple Toffee Pistachio Chewy Nut Bar, Odwalla Strawberry Pomegranate Superfood Bar, Odwalla Strawberry Protein Monster Protein Shake drink, Odwalla Quencher Pomegranate Limeade drink, Odwalla Chocolate Protein Monster drink, Odwalla Vanilla AI’Mondo Super Protein drink, Odwalla Citrus C Monster drink, Odwalla Light Lemonade, Odwalla Light Limeade, and Fanta Zero Orange Soda. Each of these products has listed either “Evaporated Cane Juice” or “Organic Evaporated Cane Juice” on its label and each is listed on one or more of the Defendants’ websites as containing “Evaporated Cane Juice” or Organic Evaporated Cane Juice.” All of these products are misbranded.

Defendants also indicate that sugar and evaporated cane juice are two distinct sweeteners although in fact they are both the same, namely sucrose.

Although Defendants list “Evaporated Cane Juice” as an ingredient on the extensive number of products indicated above, and on other products as well, the Food and Drug Administration (“FDA”) has specifically warned companies not to use this term because it is 1) “false and misleading;” 2) in violation of a number of labeling regulations designed to ensure that manufacturers label their products with the common and usual names of the ingredients they use and accurately describe the ingredients they utilize; and 3) the ingredient in question is not a juice.

The FDA has also sent out a number of warning letters indicating that evaporated cane juice is a misleading term that misbrands a product.

In discussing “Evaporated Cane Juice” in their marketing materials, Defendants do not disclose the fact that “Evaporated Cane Juice” is, in its ordinary and commonly understood terms known as, “sugar,” and/or “dried cane syrup.”

If a manufacturer is going to make a claim on a food label, the label must meet certain legal requirements that help consumers make informed choices and ensure that they are not misled.

Defendants have made, and continue to make, false and deceptive claims by making unlawful “evaporated cane juice” claims on their Misbranded Food Products. Defendants have violated  labeling regulations mandated by federal and California law by listing sugar and/or sugar cane syrups as “Evaporated Cane Juice.”

According to the FDA, the term “evaporated cane juice” is not the common or usual name of any type of sweetener, including dried cane syrup. Because both sugar and cane syrup have a standard of identity defined by regulation. The FDA provides that “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.'” Similarly, sugar or sucrose is defined by regulation in 21 C.F.R. §101.4(b)(20) and §184.1854, as the common or usual name for material obtained from the crystallization from sugar cane or sugar beet juice that has been extracted by pressing or diffusion, then clarified and evaporated.

According to the FDA, 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.” The FDA considers such representations to be “false and misleading” because they fail to reveal the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups).