Class Action Lawsuit Says Attune Bars Contain Hidden Sugar

Attune Foods Inc. has been targeted by a proposed class action lawsuit accusing it of using the term “evaporated cane juice” instead of “sugar” as an ingredient on its products’ labels, in violation of state and federal laws.

Plaintiffs Mary Swearingen and Robert Figy claim they purchased several Attune products, including Attune milk chocolate crisp probiotic bars, Attune dark chocolate probiotic bars and Erewhon organic cinnamon grahams, all of which listed evaporated cane juice (ECJ) as an ingredient. According to their class action lawsuit, the term ECJ is prohibited from use on food labels by the U.S. Food & Drug Administration (FDA) and under California law.

“Attune unlawfully uses the illegal term ECJ on its package labels, instead of the proper term sugar. Plaintiffs allege that the ingredient called ‘organic evaporated cane juice’ or ‘evaporated cane juice’ or ‘cane juice evaporated’ by defendant was actually sugar,” the Attune class action lawsuit says.

Swearingen and Figy argue that it is possible that Attune included dried sugar cane syrup as an ingredient instead of adding crystallized sugar, in which case the company allegedly listed “cane syrup” as an ingredient instead of ECJ.

“Regardless of whether the ingredient in question was sugar or cane syrup, calling the ingredient ECJ was unlawful and violated the same state and federal statutory and regulatory provisions and was contrary to FDA policy and guidance,” the Attune class action lawsuit says.

Further, the plaintiffs argue that listing ECJ as an ingredient causes the products to be “misbranded,” and are therefore illegal to sell. They claim that Attune listed ECJ as an ingredient to mislead consumers into believing that their products are healthier than products that list sugar as an ingredient. “This illegal label is used to increase sales and to charge a premium by making a product seem healthier than it is in reality,” they say in their class action lawsuit.

In their class action lawsuit, the plaintiffs refer to draft guidance that was issued by the FDA in 2009. According to this draft guidance, sweeteners derived from sugar cane syrup should not be referred to as “juice” on the product label. Allegedly, the FDA “considers such representations to be false and misleading” according to the federal Food, Drug and Cosmetic Act (FDCA) because they “fail to reveal the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups)” as is required by the FDA.

The plaintiffs accuse Attune of violating California’s Unfair Competition Law, the Consumer Legal Remedies Act and California’s Sherman Law. In their class action lawsuit, they allege that California’s Sherman Law makes it illegal to sell a misbranded product. They argue that Attune sold them a “worthless, illegal product that could not be legally sold or possessed.” They insist that no reasonable consumer would choose to buy product that is illegal to possess under California law.

By filing the Attune mislabeling class action lawsuit, the plaintiffs are seeking restitution, an injunction preventing Attune from continuing to sell and market products with ECJ listed as an ingredient, attorneys’ fees, equitable remedies, pre- and post-judgment interest.

The plaintiffs are represented by Ben F. Pierce Gore of Pratt & Associates.

The Attune Bar Class Action Lawsuit is Mary Swearingen, et al. v. Attune Food Inc., Case No. 4:13-cv-04541, in the U.S. District Court for the Northern District of California.

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