Well Done


The U.S. District Court for the Southern District of California has joined its sister court in the Northern District and delayed yet another case about “evaporated cane juice” (ECJ). Falling in line with a string of recent decisions, on August 11, the court stayed proceedings in Saubers v. Kashi Co., a case involving whether a food company’s use of the term “evaporated cane juice” to describe certain sweeteners violated food labeling laws. In its holding, the court cited the “primary jurisdiction” doctrine, which allows courts to stay proceedings pending the resolution of an issue within the special competence of an administrative agency. Since 2013, numerous courts have faced this issue—with widely different results—leaving litigants facing “evaporated cane juice” claims under a fog of uncertainty. The Saubers decision and its line may be a sign that the fog is finally lifting.

The FDA has never spelled out its position on the ingredient “evaporated cane juice.” The ingredient has become the subject of numerous “misbranding” class actions across the United States, in which plaintiffs allege that the term is deceptive and misleading. In 2009, the FDA issued draft guidance with its preliminary “thinking” but has not spoken definitively on the subject. However, in March, the FDA announced that it was reopening the issue for public comment and would soon publish final guidelines about the proper use of the term. In light of this announcement, most courts have stayed or dismissed ECJ claims under the primary jurisdiction doctrine.

Before the FDA’s March announcement, many courts were rejecting invitations to apply the primary jurisdiction doctrine. This approach left litigants under a cloud of unpredictability: Their potential liability would depend on any given court’s understanding of the technical process involved in ECJ production, and the court’s interpretation of 21 C.F.R. 102.5’s mandate to describe ingredients “in as simple and direct terms as possible.” The Saubers line of cases brings some hope for uniformity and marks a definite shift. The court dismissed the plaintiffs’ claims without prejudice, and reasoned that waiting for and deferring to the FDA’s guidelines was advisable, because it would allow the court to benefit from the FDA’s unique expertise, and provide for uniformity of administration of the agency’s guidelines. While the FDA’s upcoming guidance is still an open question, these recent decisions provide litigants with some hope for consistency where a hodgepodge once existed.

Cases that have stayed or dismissed claims based on primary jurisdiction include:

  • Saubers v. Kashi, No. 13CV899 JLS (BLM), 2014 WL 3908595 (S.D. Cal. Aug. 11, 2014)
  • Gitson v. Clover Stornetta Farms, No. C-13-01517(EDL), 2014 WL 2638203 (N.D. Cal. June 9, 2014) (staying putative class action for six months, pending final guidance from the FDA)
  • Smedt v. Hain Celestial Grp., Inc., No. 5:12-CV-03029-EJD, 2014 WL 2466881 (N.D. Cal. May 30, 2014) (dismissing ECJ claims in putative class action without prejudice)
  • Swearingen v. Late July Snacks LLC, No. C-13-4324 EMC, 2014 WL 2215878, (N.D. Cal. May 29, 2014) (staying putative class action for five months)
  • Swearingen v. Yucatan Foods, L.P., No. C-13-3544 RS, 2014 WL 2115790 (N.D. Cal. May 20, 2014) (dismissing putative class action without prejudice)
  • Avila v. Redwood Hill Farm & Creamery, Inc., No. 5:13-CV-00335-EJD, 2014 WL 2090045 (N.D. Cal. May 19, 2014) (same)
  • Swearingen v. Attune Foods, Inc., No. C-13-4541 SBA, 2014 WL 2094016 (N.D. Cal. filed May 19, 2014, N.D. Cal.) (same)