The FDA (Food and Drug Administration) announced yesterday that it is revisiting a draft guidance issued in 2009 that generated a significant amount of class action litigation over the last year. In 2009, the FDA issued a draft guidance outlining its position regarding the use of “evaporated cane juice” to describe sweeteners derived from sugar cane syrup. In the draft guidance, the FDA indicates that describing the sweeteners as juice “fail[s] to reveal the basic nature of the food and its characterizing properties” and therefore considers the use of “evaporated cane juice” to be misleading under the Food, Drug and Cosmetic Act (the FDCA).

On Wednesday, the FDA indicated that it is reopening the comment period on its 2009 draft guidance to obtain additional data and information to better understand the basic nature and characterizing properties of the ingredient, the methods of producing it, and the differences between the ingredient and other sweeteners. The FDA is seeking comments regarding whether others agree with its determination that the term “evaporated cane juice” does not convey the basic nature of the ingredient. It is also interested in how “evaporated cane juice” compares to other sweeteners derived from sugar cane, such as raw sugar and cane sugar, that use “sugar” or “syrup” in their name.

Although the 2009 draft guidance is not law, plaintiff lawyers have used the draft guidance as a “roadmap” for class action litigation over the use of the terminology. Class actions have been filed against numerous companies, including major brands like Chobani and Nestle USA. As in other food litigation, courts have treated these cases inconsistently. Some courts have found cases regarding the labeling of ingredients to be preempted by the FDCA. Recently, a court dismissed a case against Chobani, finding that the plaintiff failed to allege how the representation, even if mislabeled, could have actually deceived the plaintiff. Other courts have rejected companies’ contentions that consumers’ “evaporated cane juice” mislabeling claims are preempted by the FDCA, such as the recent case in which a California federal judge preserved a class action accusing Yucatan Foods LP of misleadingly listing “evaporated cane juice” instead of sugar on guacamole products, finding the suit avoids preemption because it does not seek to impose labeling requirements that could clash with federal law.

Companies involved in current litigation or utilizing the ingredient in their products may benefit from submitting comments, as it appears the FDA may be looking to update or finalize the guidance on “evaporated cane juice” labeling. Because the 2009 draft guidance has been a focal point of the litigation in this area, any revisions to the draft guidance could have a significant effect on future litigation on this issue. The FDA’s press release can be found at http://www.fda.gov/food/newsevents/constituentupdates/ucm387849.htm.