Whole Foods Market is in the news again. After being targeted for overcharging customers on prepared foods in a recent widespread investigation throughout New York City locations, the retailer is now fighting claims that it misled customers into consuming excess sugar by labeling it as “evaporated cane juice,” a common industry term.
The class action lawsuit, filed in April of this year by Missouri plaintiff Lois Bryant, says the grocery chain used false advertising to sell products that contained excess sugar.
But Whole Foods dismisses the charges, saying that consumers associate evaporated cane juice with sugar and know that it serves solely as a sweetening function. “The plaintiff contends without support that evaporated cane juice is something other than what it plainly means: an added sweetener derived from sugar cane,” the company’s court papers filed earlier this month explained.
Whole Foods says the cookies Ms. Bryant purchased “prominently disclosed both the total amount of sugar and the existence of added sugars by separately identifying brown sugar as an ingredient in addition to [evaporated cane juice].”
Whether or not Whole Foods will get this case dismissed is yet to be seen, but there’s an even more confounding issue at hand: the FDA guidelines on the use of the term evaporated cane juice. The agency has said it plans to review 2009’s draft guidance on labeling evaporated cane juice, in which it noted “sweeteners derived from cane syrup should not be listed on food labels as evaporated cane juice because the sweetener is not juice as defined in federal regulations.” But the draft guidance isn’t legally binding and has led manufacturers to face lawsuits (like this one) over its use. “It has created the potential for a significant degree of chaos among sweetener providers, food manufacturers, retailers and consumers,“ the Grocery Manufacturer’s Association said in a statement.
In an email to Food Navigator from an FDA spokesperson, the agency noted: “We are working to finalize our draft guidance for industry titled ‘Ingredients Declared as Evaporated Cane Juice.’ We do not have a firm date for publication at this time.”
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