For years, food companies have been using the term “evaporated cane juice” in the ingredients list on food products. This has resulted in a number of lawsuits by consumers claiming that the term misled them into thinking those products did not contain sugar, including this failed putative class action against KIND. In May 2016, the Food and Drug Administration (“FDA”) chimed in with guidance advising the food industry that the agency is not so sweet on the term “evaporated cane juice,” and that this term should not be used on food labels to describe sweeteners derived from the fluid extract of sugar cane (i.e. cane sugars or syrups). According to the FDA, use of this term to describe sweeteners made from sugar cane is false and misleading, since it suggests that the sweetener is “juice” from fruits or vegetables, and does not reveal that the ingredient’s “basic nature and characterizing properties are those of a sugar.” Instead, the FDA says, this ingredient should be “declared on food labels as ‘sugar,’ preceded by one or more truthful, non-misleading descriptors if the manufacturer so chooses (e.g., ‘cane sugar’).”
21 C.F.R. 101.4(a)(1) states that ingredients on food labels “shall be listed by common or usual name.” The FDA determined that “evaporated cane juice” is not the common or usual name of any type of sweetener extracted from sugar cane. The FDA’s definition of “juice” in the context of diet and nutrition includes only liquids or purees extracted from fruits and vegetables. While acknowledging that sugar cane is technically a “member of the vegetable kingdom in the broad sense of classifying an article as ‘animal,’ ‘vegetable,’ or ‘mineral,’ FDA considers the term ‘vegetable’ in the context of the juice definition to refer more narrowly to edible plant parts that consumers are accustomed to eating as vegetables in their diet. Sugar cane is not a vegetable in this sense.” Therefore, liquid derived from sugar cane, similar to maple syrup or sorghum syrup, is not considered a “juice” under the FDA’s definition of the term, and should not be labeled as such.
In the same vein, sweeteners derived from sugar cane should not be included in the percentage juice declaration on the labels of beverages that claim to contain fruit or vegetable juice. For example, “FDA would consider a juice product sweetened with an ingredient derived from sugar cane and labeled as 100% fruit juice to be misbranded” since the product contains a non-juice sweetener in addition to the fruit juice. FDA would also consider such a product to be adulterated because “sweetener has been substituted for part of the juice.”
While the FDA has determined that the “common or usual name for the ingredient currently labeled as ‘evaporated cane juice’ includes the term ‘sugar’ and does not include the term ‘juice’,” it has indicated that it would not object to the addition of non-misleading descriptors before the word “sugar.” These descriptors can be used to distinguish sweeteners derived from sugar cane from other types of sugars or sweeteners on the market “by describing characteristics such as source, color, flavor, or crystal size.” In addition, for companies that presently market foods with “evaporated cane juice” listed as an ingredient, the agency has indicated that it would not object to the use of stickers to change these labels to conform with this latest guidance, until the product’s next regularly scheduled label printing.
Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at email@example.com /212-969-3240 or firstname.lastname@example.org /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.