“Evaporated cane juice” is an ingredient name for a sweetener often seen in food labeling.
In October 2009, FDA issued a draft guidance document, essentially advising industry of FDA's view that the common or usual (C/U) name for the solid or dried form of sugar cane syrup is “dried cane syrup,” and that a sweetener derived from sugar cane syrup should not be declared on food labels as “evaporated cane juice” because that name falsely suggests the sweetener derives from a juice. See generallyDRAFT Guidance for Industry: Ingredients Declared as Evaporated Cane Juice (Oct. 2009). FDA premised its guidance on a regulatory definition of “juice”:
Juice means 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.
21 C.F.R. § 120.1(a). The original comment period on the guidance document closed in December 2009.
FDA’s regulations provide general requirements for C/U names to be used in the labeling of foods. The C/U name must describe the basic nature of the food or its characterizing properties or ingredients. Moreover, the C/U name must be uniform among all identical or similar products and may not be confusingly similar to the name of any other food that is not encompassed within the same name. 21 C.F.R. §102.5(a).
A substantial number of class action lawsuits have been filed, largely in California, against food manufacturers under state law, consumer protection theories, contending that the manufacturer misled consumers by using “evaporated cane juice” on the label. Food manufacturers have had varying success in obtaining dismissal of such claims. Although none of the cases has gone to trial yet, several settlement classes have been approved. E.g., Singer v. WWF Operating Co. d/b/a Whitewave Foods, Case No. 1:13-cv-21232 (S.D. Fla.).
FDA has reopened the comment period on its guidance document. 79 Fed. Reg. 12,507 (Mar.5, 2014). The agency invites comments, in particular, on the following matters:
Data and other information submitted in support of comments are (of course) helpful. Comments should be submitted by May 5, 2014.