Living Harvest named in class action over products containing evaporate cane juice

Living Harvest advertises and markets many of its Products as having evaporated cane juice, an unlawful term that is merely a false and misleading name for another less healthy food or ingredient that has a common or usual name, namely sugar. By using the term evaporated cane juice, Living Harvest is concealing the fact that it is adding sugar to its Products.

According to the complaint, Living Harvest engaged in a uniform campaign through which it purposefully misrepresented and continues to purposefully misrepresent to consumers that its Products contain ECJ even though “evaporated cane juice” is not “juice” at all—it is nothing more than sugar, cleverly disguised. Defendant conceals the fact that its Products have added sugar by referring to the sugar as ECJ, a “healthy” sounding name made up by the sugar industry years ago to sell sugar to “healthy” food manufacturers for use in their consumer products. ECJ is not the common or usual name of any type of sweetener, or even any type of juice, and the use of such a name is false and misleading. Living Harvest uniformly lists ECJ as an ingredient on its Products, as well as on its website and other promotional material.

Class: Plaintiff brings this consumer class action on behalf of herself and all other persons who, from October 22, 2009 up to and including the present (the “Class Period”), purchased in Florida for consumption Products listing Evaporated Cane Juice (“ECJ”) in the ingredients

The lawsuit and those similar naming other product that contain evaporated cane juice are based, in part, on FDA industry guidance which advised that:

[T]he term “evaporated cane juice” has started to appear as an ingredient on food labels, most commonly to declare the presence of sweeteners derived from sugar cane syrup. However, FDA’s current policy is that sweeteners derived from sugar cane syrup should not be declared as “evaporated cane juice” because that term falsely suggests that the sweeteners are juice…

“Juice” is defined by 21 CFR 120.1(a) as “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.” … As provided in 21 CFR 101.4(a)(1), “Ingredients required to be declared on the label or labeling of a food . . . shall be listed by common or usual name . . . .” The common or usual name for an ingredient is the name established by common usage or by regulation (21 CFR 102.5(d)). The common or usual name must accurately describe the basic nature of the food or its characterizing properties or ingredients, and may not be “confusingly similar to the name of any other food that is not reasonably encompassed within the same name” (21 CFR 102.5(a))…

Sugar cane products with common or usual names defined by regulation are sugar (21 CFR 101.4(b)(20)) and cane sirup (alternatively spelled “syrup”) (21 CFR 168.130). Other sugar cane products have common or usual names established by common usage (e.g., molasses, raw sugar, brown sugar, turbinado sugar, muscovado sugar, and demerara sugar)…

The intent of this draft guidance is to advise the regulated industry of FDA’s view that the term “evaporated cane juice” is not the common or usual name of any type of sweetener, including dried cane syrup. Because cane syrup has a standard of identity defined by regulation in 21 CFR 168.130, the common or usual name for the solid or dried form of cane syrup is “dried cane syrup.”…Sweeteners derived from sugar cane syrup should not be listed in the ingredient declaration by names which suggest that the ingredients are juice, such as “evaporated cane juice.” FDA considers such representations to be false and misleading under section 403(a)(1) of the Act (21 U.S.C. 343(a)(1)) because they fail to reveal the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups) as required by 21 CFR 102.5. Furthermore, sweeteners derived from sugar cane syrup are not juice and should not be included in the percentage juice declaration on the labels of beverages that are represented to contain fruit or vegetable juice (see 21 CFR 101.30).

New York’s attorney general investigates Pepsi and Monster Beverage over statements about the ingredients and health value of its products.

New York’s attorney general investigates Pepsi and Monster Beverage  over statements about the ingredients and health value of its products.

 

The NY AG’s office issued subpoenas to PepsiCo Inc., Monster Beverage Corp. and  Living Essentials LLC, seeking information on the companies’ marketing and advertising practices.

The caffeine-heavy, carbonated beverages have become ubiquitous at grocery stores, gas stations and checkout counters across the country. Makers of the drinks, which are often sweetened with flavors such as grape or mixed berry, say they boost energy with a mix of additives including B-vitamins, taurine and ginseng. AMP’s website, for example, says the B-vitamins and caffeine in its Boost drinks offers “the kick you need to tackle the early morning meeting.” On its website, 5-hour Energy says it gives “hours of energy” with “no crash later.”

Energy drinks are among the fastest-growing products in the beverage sector.  The drinks are regulated more loosely than traditional sodas such as cola. In 2009, the Food and Drug Administration said it was “concerned” certain ingredients such as botanical extracts were being added to beverages and foods beyond their traditional use, which it said raised questions about safety. The federal agency says the term “energy drink” isn’t defined by any FDA regulation, describing it as an ill-defined marketing term with widely varying ingredients.

The New York AG is examining whether the companies overstated the benefits of exotic-sounding ingredients while understating the role of caffeine, a common stimulant that industry critics believe to be the main active ingredient, that person said.

The products’ labels often don’t say how much caffeine is contained in the drink. The label on Monster’s 16-ounce can says it contains caffeine but doesn’t say how much; 5-hour Energy doesn’t say how much caffeine is contained in one bottle, but its website says it is about as much as a cup of coffee.

Investigators are also looking into whether the addition of ingredients like guarana—another source of caffeine—violates laws that ban putting multiple sources of caffeine in one beverage without disclosing the overall amount, according to the person familiar with the investigation.