Whole Foods Accused of Hiding Sugar In Oatmeal Ingredients (subscription to Law360 required)

  • As previously covered on this blog, a claim against Whole Foods involving the term “evaporated cane juice” (ECJ) was dismissed from the “Food Court” (i.e., the Northern District of California) in 2015 because inconsistencies in the plaintiff’s statements and actions make it implausible that he was misled to believe that “juice” means “healthy” or that ECJ is a healthy unrefined sugar.  We also reported that cases against other defendants alleging the use of ECJ is misleading on various product labels were put on hold while the Food and Drug Administration (FDA) worked to finalize relevant guidance.
  • As covered here, FDA released final guidance on May 25, 2016, reaffirming the Agency’s view that sweeteners derived from sugar cane should not be declared on food labels as “evaporated cane juice” and that the term is “false or misleading because it suggests that the sweetener is ‘juice’ or is made from ‘juice’ and does not reveal that its basic nature and characterizing properties are those of a sugar.”  Now a proposed class of consumers have alleged in a federal lawsuit, filed in New York on November 15, 2019, that they were misled by the term “organic dehydrated cane juice solids” in the ingredients statements on Whole Foods’ instant oatmeal labels.  According to the plaintiffs, the oatmeal labels use a term that is comparable to evaporated cane juice and similarly suggest that the ingredient at issue came from a fruit or vegetable, such as berries that are featured prominently on the front of the package.
  • The plaintiffs in this new lawsuit are seeking unspecified damages and an injunction against the use of the allegedly misleading ingredient statement.  The request for an injunction could be moot, however, as it appears that all of the sweetened instant oatmeal products on Whole Foods’ website currently list “cane sugar” or “organic cane sugar,” rather than any variation of “cane juice,” in the ingredient statements.