On March 7, 2014, my colleague Justin Prochnow posted The Name Game:  FDA Revisits its 2009 Draft Guidance on ‘Evaporated Cane Juice,’ which addressed the FDA’s recent announcement that it is revisiting a 2009 draft guidance stating its position on the description “evaporated cane juice.”  The 2009 draft guidance took the position that describing the ingredient as “juice” was misleading under the Food, Drug and Cosmetic Act.  The FDA is now soliciting comments on the issue, which could affect how the Administration treats the description, which in turn could affect litigation against companies whose products contain the ingredient.  As described more in Mr. Prochnow’s March 7 post, the 2009 draft guidance spawned numerous class actions against such companies.  That litigation continues, including a putative class action against Wallaby Yogurt Co. that a federal judge on Thursday, March 13, 2014 allowed to proceed.  The case is Morgan v. Wallaby Yogurt Co., Inc., 3:13-cv-00296 (N.D. Cal. 2013).

The Plaintiffs claimed that they were duped into believing that Wallaby’s yogurt contained less sugar than it actually did based on the description of the product as including evaporated cane juice, and that they paid a premium price as a result.  They pled that evaporated cane juice and sugar are essentially the same, and argued that their complaint should survive because California’s Sherman Law, by incorporating applicable federal law, requires food products to be labeled with the most common words for ingredients.  The Court agreed, and denied Wallaby’s motion to dismiss.  However, the Court precluded Plaintiffs from obtaining injunctive relief, reasoning that, now that Plaintiffs know what evaporated can juice is, they can’t plausibly claim that they would buy accurately-labeled products in the future.

This case is one of many pending in the Northern District of California over the “cane juice” description.  As our prior post suggests, companies selling these products should consider submitting comments in response to the FDA’s solicitation, which ultimately may help to give these companies a clearer picture of litigation risks and how to avoid or defeat these cases.