The underrated legal lesson of the Supreme Court’s Pom Wonderful v. Coca-Cola is that someone will take food labeling far too literally and sue you for it. Cue the pair of New Yorkers taking on Chobani and Fago yogurt for sugar and the number zero.
In two separate suits making the same claims, Barry Stoltz and Allan Chang are accusing the Greek yogurt companies of violating the Food Drug & Cosmetic Act and the deceptive trade laws in all 50 states with their 0% labels. According to one of the suits,
Defendants intend to create confusion by causing purchasers to impute any meaning to the 0% that customers wish, such as that Products lack sugar, carbohydrates, calories, or any other content which a customer may believe is unhealthy.
Their claim hinges on the fact that the yogurt brands don’t immediately clarify what the 0% pertains on the front of the packaging so people think it’s like the 0 sugar in Coke Zero and Pepsi Max. Who doesn’t think of diet soda when eating dairy products? Maybe because like soda, yogurt has sugar in it? Or because a lot of people don’t read the nutritional information before eating?
The crux of the complaint against Chobani is that their yogurt is packed with sugar but they hide it by calling it “evaporated cane juice,” (ECJ) but the plaintiffs are far from the first to bring suit over sugar/cane juice. The sweet labeling has been on the Food and Drug Administration’s to-do-list since it originally drafted labeling guidance in 2009, according to Kelley Damewood of Food Safety News.
Prior to FDA reopening the commenting period, it was unclear whether courts should dismiss the ECJ cases on primary jurisdiction. On one hand, class-action plaintiffs argued that FDA has already resolved the ECJ labeling issue because it has clearly and continually held that sweeteners derived from cane syrup should not be labeled as ECJ. On the other hand, industry argued that a 2009 draft guidance, which is not binding on industry, is not a final resolution of the issue.
The FDA originally said that cane juice should be called “dried cane syrup” instead, but because the guidance was never finalized, there’s been a string of class actions – including 52 cases in the Northern District of California on sugar alone. There have been varying results with at least one case being deferred to the FDA. In the recent suit against Whole Foods, the judge made the most level-headed decision. Eric Wiesner for Class Action Defender writes that
Judge [Edward J.] Davila held that the phrase ECJ was not likely to deceive reasonable consumers because every label lists “sugar” as an included nutrient “and clearly shows how much sugar is contained in the product.” Citing two other recent cases from the Northern District, the court found that the plaintiff “fails to allege what Plaintiff believed ECJ to be if not sugar and does not explain what a reasonable person would believe ECJ to be.”
In a previous suit filed in California, Chobani had the sugar/juice claims against them tossed out because the plaintiffs’ confusion between the two sweeteners wasn’t plausible.
The latest filing in New York shows that the FDA needs to decide over cane juice for the sake of preventing trivial lawsuits. While the plaintiffs have quite the claim to prove, they may be taking themselves a little too seriously in some of their following claims.
Moreover, Defendants purposefully market their Products as “Greek” yogurt when there is nothing “Greek” about the Products. None of the Products sold in the U.S. are made in Greece or made by Greek nationals even though Defendants market themselves as “America’s Top Greek Yogurt.”
Hopefully, they never find out that French fries are not from France.