FDA Action Should Take the Juice Out of Some Food Labeling Class Actions

Unevaporated Cane

Unevaporated Cane

We admit that before scrutinizing the related wave of food labeling class action litigation, we had never seen the term “evaporated cane juice” (ECJ).  It might be fair to wonder whether many of the plaintiffs in these suits had ever noticed it on food labels either. But claims alleging that using ECJ on a food label violate federal rules (and thus also California law) have become ubiquitous. As of January 22, there were over 50 suits pending in federal courts with an ECJ claim. Thanks to an action yesterday by the Food and Drug Administration (FDA), those claims may not survive beyond March.

FDA formally reopened the comment period for draft guidance first published on October 7, 2009. That draft guidance informed industry that “dried cane syrup,” not evaporated cane juice, is the common or usual name under federal rules for “the solid or dried form of sugar cane syrup.” FDA never finalized that guidance, but true to FDA form, the agency still invoked it in warning letters sent to companies using the term evaporated cane juice.

Plaintiffs in class-action suits with ECJ claims have routinely argued that the draft guidance and the warning letters established an FDA standard, and that use of the term “evaporated cane juice” violated California law. Even though FDA stated plainly in the documents themselves that neither the 2009 draft guidance nor warning letters invoking it represented the agency’s enforceable view on ECJ, some federal judges have ignored those statements and ruled that FDA has spoken on ECJ.

Defendants in ECJ cases have argued that because establishing the correct terminology for dried sugar cane was within the “special competence” of FDA, and because exercise of that authority is ongoing, courts should defer to FDA under the prudential “primary jurisdiction” doctrine. While that argument was initially successful in cases involving the use of “natural,” with one exception (Judge Rogers’s Hood v. Wholesoy decision), courts have uniformly rejected the primary jurisdiction defense in ECJ cases. We wrote about the most recent case to do so, Gitson v. Clover Stornetta Farms, in January.

The Gitson court, as well as the courts overseeing the other 50+ cases with ECJ claims, will soon be receiving new motions to dismiss based on FDA’s reopening of the ECJ draft guidance comment period. Courts in food labeling cases have applied the primary jurisdiction doctrine consistently to dismiss cases involving labeling where FDA has an ongoing administrative proceeding. For instance, in last year’s Ivie v. Kraft Foods Global et. al decision, Judge Whyte of The Food Court (aka the Northern District of California) threw out a claim because FDA had a rulemaking underway to redefine what constitutes one serving of a breath mint.

We’ve regularly criticized FDA in our Food Court-related commentaries for ceding its enforcement authority to unaccountable plaintiffs’ lawyers and docket-overloaded judges. Such a surrender, we have argued, contradicts what Congress intended when it passed the Nutritional Labeling and Education Act—food labeling uniformity for products sold in a national market. While the Federal Register notice does not mention the 50+ suits with ECJ claims, the timing of it can’t be a coincidence. We applaud FDA’s action and hope that it is but the first agency reminder that regulation of food labeling resides primarily with the executive, not the judicial, branch of government.

Also posted at WLF’s Forbes.com contributor site

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