Grocery Manufacturers Association, Others Say 2009 FDA Guidance On Use Of the Term “Evaporated Cane Juice” Has Caused Chaos In Food Industry

By Stefanie Jill Fogel and Mary B. Langowski

• In 2009, the FDA told manufacturers not to use the term “evaporated cane juice” on the grounds that the term could be used to conceal the fact that a product contains added sugar. The Grocery Manufacturers Association and several industry members, in a 92-page filing at the FDA May 6, say the FDA’s view of that term, while expressed in good faith, has opened the industry up to lawsuits and “caused chaos for manufacturers.” They also assert that “evaporated cane juice” is the common, defensible and acceptable name for the ingredient and should be allowed. Some companies have changed their labels in response to the FDA’s views, while others have kept the status quo until the FDA’s position is final.
• Kashi and Bear Naked agree to stop using the term “all-natural” to describe some of their products. In response to a wave of civil litigation over the controversial term “all-natural,” Kashi, a subsidiary of Kellogg, has become the latest company to agree to stop using the term. In a settlement filed May 2 in the US District Court for the Southern District of California, Kashi agreed to pay $5 million to settle a false-advertising class action. Several other food manufacturers have recently settled similar suits. Kashi did not admit any liability. The class action had alleged that many of Kashi’s products contained chemicals that the ordinary consumer would consider unnatural. Kashi’s Bear Naked subsidiary settled a similar suit the same day, agreeing to pay $325,000 and stop using the term.
• Former operations manager pleads guilty in salmonella outbreak. The former plant operations manager at the Peanut Corporation of America pleaded guilty on May 7 to seven counts related to a Salmonella outbreak five years ago that killed nine people. Samuel Lightsey, the manager, is expected to serve no more than six years in federal prison for his role in the 2009 outbreak. He is cooperating with law enforcement by giving information on the involvement of other people in the wrongdoing. Lightsey had been charged with conspiracy to commit mail and wire fraud, conspiracy to introduce misbranded and adulterated food into interstate commerce, as well as obstruction of justice. Prosecutors alleged that Lightsey and others misled consumers about the existence of foodborne pathogens, notably salmonella, in the peanuts that the company sold. The company has since gone bankrupt.
• Judge dismisses most nutrition claims against Hershey in California lawsuit. The majority of claims made by a consumer against Hershey for false nutrition labeling have been dismissed by a California court, but the company continues to face allegations of making misleading antioxidant claims. A judge in the US District Court for the Northern District of California found May 5 that the plaintiff who had brought the case either had not seen the other nutrition claims at issue or had not relied on them, [enhanced version available to lexis.com subscribers]. The judge did find that the plaintiff had read and relied upon the company’s claims that its Special Dark Cocoa and Special Dark Kisses were a natural source of antioxidants; that part of the case will be allowed to continue.
• Vermont law on genetically modified foods will face lawsuit. The Grocery Manufacturers Association announced that it will file suit in federal court within weeks challenging Vermont’s new law that requires labels on genetically modified foods. The association said on May 8, the day that the law was signed by Vermont’s governor, that the state has no compelling interest in warning customers about foods that contain genetically modified ingredients, since there is nothing unsafe about the foods. At the same time, the governor announced a new website to raise funds to help the state fight any court battles. The bill includes $1.5 million for the costs of implementation and defense against lawsuits expected from the food and biotech industries.

For more information about these developments and their effect on your business, please contact the above members of the Food and Beverage Sector team.

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