A number of putative class actions argue that using “Evaporated Cane Juice” (“ECJ”) on food labels is deceptive because that ingredient is nothing more than sugar.  Under the primary jurisdiction doctrine, courts will defer to regulatory agencies that have particular expertise and responsibility for enforcing the law or overseeing an industry.  In many food labeling cases, the defendants argue that courts should defer to the Food & Drug Administration’s oversight.  The Northern District of California is the most active forum for food labeling class actions, and judges in that district have reached different conclusions as to whether the primary jurisdiction doctrine applies to such ECJ claims.  In March 2014, the FDA reopened the comment period as to whether ECJ is an appropriate description to include on a food label.  This development should help ECJ class action defendants, at least in the near term.

Until now, many class action plaintiffs have used a 2009 FDA draft guidance regarding ECJ with considerable success.  That guidance indicated that “a common or usual name for the solid or dried form of sugar cane syrup is ‘dried cane syrup’ and that sweeteners derived from sugar cane syrup should not be declared on food labels as ‘evaporated cane juice’ because that term falsely suggests the sweeteners are juice.”  Pointing to that guidance, many plaintiffs argued that the FDA essentially had concluded that using ECJ was deceptive.

Food labeling class action defendants often argue that the primary jurisdiction doctrine applies.  Under that doctrine, courts will defer to regulatory agencies that have principal responsibility for, and particularized knowledge regarding, enforcing certain statutory or regulatory schemes.  In broad strokes, the doctrine indicates that courts should defer to those regulatory agencies when addressing such an issue requires technical knowledge beyond the court’s and a jury’s understanding.  In food labeling actions, courts often defer when the FDA either has taken steps or indicated it will take steps to address the propriety of certain labeling techniques.  By no means are courts uniform in applying the doctrine, though.  Nonetheless, it certainly helps a class action defendant’s primary jurisdiction argument if the FDA indicates that it is evaluating an issue as part of the regulatory process.

The FDA’s 2009 ECJ guidance to the industry has proved to be quite an impediment for several defendants.  It makes it easy for plaintiffs to contend that the FDA has considered this issue, issued its guidance, and plans to take no further action.  Thus, according to those plaintiffs, there is no reason for courts to defer to the agency.  The advisory suggests that ECJ is an inappropriate phrase to use on food labels.  The FDA’s notice posted in the Federal Register on March 5, 2014, however, may revive some primary jurisdiction arguments.  79 Fed. Reg. 12507.

In that notice, the FDA indicates it is reopening the comment period relating to the 2009 draft guidance for “Ingredients Declared as Evaporated Cane Juice.”  Indeed, the FDA commented that “[w]e have not reached a final decision on the common or usual name for this ingredient and are reopening the comment period to request further comments, data, and information about the basic nature and characterizing properties of the ingredients sometimes declared as ‘evaporated cane juice’ how this ingredient is produced, and how it compares with other sweeteners.”  At least one food labeling class action defendant has pointed to this reopening of the comment period to argue that the court should reexamine the primary jurisdiction issue.  That court has directed both sides to submit supplemental briefs regarding the effect to of the FDA’s recent action.  Reese v. Odwalla, Inc., Case No. 13-CV-947-YGR (N.D. Cal. 3/6/14).

It would be premature to conclude that the FDA’s recent request for additional comments suggests it will reach a different conclusion regarding the propriety of using ECJ on food labels.  For example, the request asks commenters to discuss whether ECJ adequately conveys the basic nature of the food and refers to “the significant differences in source and composition” between ECJ and beverages that are regulated as juice.  It also asks commenters to explain why “dried cane syrup” is an inadequate description, which the 2009 draft guidance suggested manufacturers use.  Interested parties have until May 4, 2014 to submit comments.

If nothing else, the fact that the FDA has reopened the comment period diminishes the effect of the agency’s 2009 draft guidance, which many plaintiffs have portrayed as a final and conclusive decision.  It establishes that the FDA continues to evaluate the issue and the propriety of using ECJ on food labels.  Indeed, it starkly contrasts with the FDA’s stance on using “all natural” on food labels; as to that phrase, the agency has consistently informed courts that it will not evaluate that phase in the foreseeable future, if at all.  To the extent courts have not ruled on the primary jurisdiction issue in ECJ cases, however, expect them either defer to the FDA or at least stay litigation until this latest round of regulatory evaluation is complete.

James Smith is a partner in Bryan Cave’s Phoenix office.  He is a member of the Class & Derivative Actions Client Service Group and the Food and Beverage Team.