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“Evaporated Cane Juice” — Comment Period Reopened

“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In October 2009, FDA issued a draft guidance document, essentially advising industry of FDA’s view that the common or usual (C/U) name for the solid or dried form of sugar cane syrup is “dried cane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:

  • What is the basic nature and characterizing properties of the ingredient sometimes declared as “evaporated cane juice”?  How is this ingredient produced?  How is its method of manufacture different from that of other sweeteners made from sugar cane (e.g., cane sugar, cane syrup, etc.)?  How does it compare with such other sweeteners?  Is there a uniform industry standard for this ingredient as traded in the marketplace?
  • Does the name “evaporated cane juice” adequately convey the basic nature of the food and its characterizing properties or ingredients, consistent with the principles in § 102.5(a)?  How does the name “evaporated cane juice” square with the principle that the name of a food may not be confusingly similar to the name of any other food that is not encompassed within the same name, given the significant differences in source and composition between this ingredient and beverages that are regulated as “juice” (e.g., orange juice and tomato juice)?
  • How is “evaporated cane juice” similar to, or different from, other sugars and syrups derived from sugar cane (e.g., raw sugar, cane sugar, cane syrup, demerara sugar, muscovado sugar, turbinado sugar, etc.) in terms of basic nature and characterizing properties or ingredients?  Considering that the ingredient is used as a sweetener derived from sugar cane, what would be the rationale for establishing a C/U name that identifies this ingredient as a “juice,” rather than as a “sugar” or “syrup,” and how would such an approach square with the principle that C/U names should be uniform and consistent among similar foods?
  • Applying the principles for C/U names in § 102.5, in what way does “dried cane syrup” fail to identify or describe this substance’s basic nature or characterizing properties or ingredients?

Data and other information submitted in support of comments are (of course) helpful.  Comments should be submitted by May 5, 2014.

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