The Revival Of ECJ Lawsuits: Sweet Tooth For Plaintiffs, Or Toothless Claims?

Introduction.

On May 22, 2017, plaintiff Jessica Gomez filed an opposition on behalf of a putative class of consumers urging a federal district court judge not to dismiss her lawsuit against Jelly Belly Co. ("Jelly Belly") for allegedly misleading consumers by listing "evaporated cane juice" (ECJ) instead of "sugar" in the ingredient list of its "Sports Beans" candy. The Gomez matter suggests that ECJ claims, previously dormant pending FDA's issuance of final ECJ guidance, are now being filed and litigated since FDA issued its final guidance in May 2016. It remains to be seen, however, whether courts will dismiss these claims at the pleadings or summary judgment stage.

Background on FDA's ECJ Guidance. In 2009, FDA issued draft guidance stating that the term ECJ is false and misleading under Section 403(a)(1) of the FDCA because ECJ "does not accurately describe the basic nature of the food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.)." In other words, FDA suggested that ECJ could mislead consumers into believing that a product did not include sugar. Instead of finalizing its Draft Guidance, FDA reopened the comment period on March 4, 2014. In the meantime, several lawsuits in the Northern and Central Districts of California were stayed pending FDA's issuance of its Final Guidance. (See e.g., The (Not So) Sweet Sound of FDA's Silence: Judge Seeks Answers From FDA on ECJ Draft Guidance.) On May 25, 2016, FDA issued its 2016 ECJ Final Guidance ("2016 Final Guidance"), upholding its previous finding that the use of ECJ is false and misleading and further stating that "sweeteners derived from sugar cane should not be listed in the ingredient declaration by names such as 'evaporated cane juice,' which suggest that the ingredients are made from or contain fruit or vegetable 'juice' as defined in 21 CFR 120.1." After FDA issued the 2016 Final Guidance, stays were lifted in multiple cases, and new complaints have been filed alleging that the use of ECJ, instead of sugar, on an ingredient list violates the FDCA and California's corresponding Sherman Act.

The Gomez case. One of these new ECJ lawsuits was filed by Ms. Gomez in February 2017 against Jelly Belly in San Bernadino Superior Court. Plaintiff alleged that she, and others similarly situated, were misled by Sports Beans' ingredient list because it lists ECJ rather than sugar. Plaintiff further alleges that she was harmed...