Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Court asks whether FDA determination on evaporated cane juice labeling is forthcoming, (May 19, 2015)

By Bryant Storm, J.D.

The federal district court in San Francisco has asked the FDA Commissioner whether a final determination on the use of the term evaporated cane juice (ECJ) on food labeling is “feasible within agency priorities and resources.” The court made its inquiry in order to move forward with consumer litigation challenging the use of the term ECJ on the ingredient lists of Late July Snack Food LLC cracker and chip products. The court asked the FDA to indicate whether it would issue a final position on the use of ECJ within 180 days (Swearingen v. Late July Snacks LLC, May 15, 2015, Chen, E.).

Lawsuit. Mary Swearingen and Robert Figy brought a class action asserting that Late July Snack LLC cracker and snack chip food products were not properly labeled in accordance with the requirements of the Food Drug & Cosmetic Act (FDC Act) in violation of California’s Unfair Competition Law and Consumer Litigation Remedies Act. Specifically, the consumers alleged that Late July violated the FDC Act and its implementing regulations by using the term ECJ in place of the common or usual name for sugar or dried cane syrup.

Stayed. On May 29, 2014, the district court stayed the action under the doctrine of primary jurisdiction. The court invoked primary jurisdiction because the FDA made an announcement on March 4, 2014, that it intended to reopen the comment period on a draft guidance examining the use of the term ECJ in product ingredient lists. Because the agency planned to articulate a position on whether ECJ is misleading, the court determined that it was best to leave the issue of whether ECJ is a common term for sugar to the expertise of the FDA. As a result, the case was stayed pending the issuance of the FDA’s final guidance.

Request. Almost an entire year after the case was stayed, the court made its request to the Commissioner under 21 C.F.R. Sec. 10.25(c), which requires the FDA to undertake administrative proceedings when a court holds in abeyance its proceedings and the FDA Commissioner decides that an “administrative determination is feasible within agency priorities and resources.” The court directed the consumers to serve a copy of the court’s order on the FDA Commissioner within 14 days of the court order.

The case is No. C-13-4324 EMC.

Attorneys: Ben F. Pierce Gore (Pratt & Associates) for Mary Swearingen. Joshua L. Solomon (Pollack Solomon Duffy LLP) for Late July Snacks LLC.

Companies: Late July Snacks LLC

Cases: Advertising StateUnfairTradePractices CaliforniaNews