Class Action Lawsuit Says Late July Snacks Contain Hidden Sugar

Class Action Lawsuit Says Late July Snacks Contain Hidden Sugar

By Anne Bucher

Late July Snacks LLC has been hit with a proposed class action lawsuit accusing the organic snack company of misleading consumers by listing “evaporated cane juice” instead of “sugar” as an ingredient in some of its products.

Plaintiffs Mary Swearingen and Robert Figy claim that they purchased a variety of Late July snacks, including chips, crackers and sandwich crackers, each of which listed evaporated cane juice (ECJ) as an ingredient. According to their class action lawsuit, the term “evaporated cane juice” is prohibited from use on food labels under state and federal law. Further, the plaintiffs allege that the ECJ listed on the labels is actually sugar.

“It is possible, however, that instead of adding crystallized sugar as the ingredient at issue that the defendant added dried sugar cane syrup as the ingredient,” the Late July class action lawsuit says. “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 (U.S. Food & Drug Administration) policy and guidance.”

In October 2009, the FDA issued draft guidance about the use of evaporated cane juice on product labels. The agency clearly stated that its “current policy is that sweeteners derived from sugar cane syrup should not be declared as ‘evaporated cane juice.’” According to the class action lawsuit, the FDA has continued to stress that “evaporated cane juice is not the common or usual name of any type of sweetener.” Despite this clear assertion, Late July has not bothered to remove the unlawful term from their products’ ingredient lists.

The plaintiffs accuse Late July of listing ECJ as an ingredient instead of sugar in attempt to convince consumers 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,” the class action lawsuit said.

“Under California law, misbranded food products cannot be legally sold or possessed, have no economic value and are legally worthless. Indeed, the sale or possession of misbranded food products is a criminal act in California,” the Late July Snacks class action lawsuit says. The plaintiffs claim that they were tricked into paying a premium for products that violated the law. Had they known that the products were illegal, they would not have purchased them. 

“Plaintiffs and the Class have been unlawfully deprived of money in an illegal transaction that occurred because the Defendant sold them a worthless, illegal product that could not be legally sold or possessed,” the class action lawsuit states. They assert that no reasonable consumer would have chosen to be put in that position.

Class action lawsuits alleging that food products are mislabeled if they list evaporated cane juice instead of sugar are growing. Earlier this year, Kashi Co. was targeted by a similar class action lawsuit accusing the company of failing to disclose that evaporated cane juice is processed sugar. In August, the manufacturer of Silk and Horizon Organic products reached a class action settlement over claims they falsely marketed the products by listing evaporated cane juice, allegedly misleading consumers into thinking the ingredient is juice when it is actually sugar.

The plaintiffs in the Late July class action lawsuit accuse the company of violating California’s Unfair Competition Law and the Consumer Legal Remedies Act. They seek an injunction to bar Late July from continuing to market and sell its products in an unlawful manner. They also seek restitution, equitable relief, pre- and post-judgment interest, and attorneys’ fees and costs.

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

The Late July Snacks Class Action Lawsuit is Mary Swearingen, et al. v. Late July Snacks LLC, Case No. 3:13-cv-04324, in the U.S. District Court for the Northern District of California.

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