Advertising Law Blog

With consumers ever more ingredient-conscious, brands must be careful of how they describe them, particularly when the product may be positioned as a “healthy” version.

A class action lawsuit has been filed against candy manufacturer Jelly Belly Candy Company in relation to potentially misleading labelling of its “Sports Beans” products with regard to their sugar content. The named plaintiff, Jessica Gomez, asserts in the complaint that Jelly Belly’s inclusion of “evaporated cane juice” on the ingredient list and packaging of the beans fails to conspicuously disclose the presence of sugar in the product.

The Sports Beans are advertised as “Energizing Jelly Beans,” containing carbohydrates, electrolytes, and vitamins B and C. The list of ingredients also featured on the Sports Beans’ packaging does not specifically list “sugar” as an ingredient. The list does, however, reference “evaporated cane juice” as the first item on the ingredient list. Ms. Gomez alleges that such labeling is misleading, fraudulent, and constitutes false advertising. Ms. Gomez asserts that she would not have paid “as much, if at all, for the product, but for [the] Defendant’s misrepresentations.”

In response to the complaint, Jelly Belly argues that the packaging does state the amount of sugar contained in the product, and that no consumer would have read the ingredient “evaporated cane juice” without having viewed the specified sugar content. The specific use of “evaporated cane juice” as a labelled ingredient on food packaging has, however, been the subject of the Food and Drug Administration’s (“FDA”) attention, and the FDA appears to support Ms. Gomez’s argument. In May 2016, the FDA released its guidance on the use of “evaporated cane juice” on food labels to describe sweeteners derived from sugar cane, opining that such a description is false or misleading as it suggests that the sweetener is or is made from fruit or vegetable juice. Contrary to such a suggestion, “evaporated cane juice” has the same basic properties as a sugar, and so, according to the FDA, failing to label it as such is misleading.

Although the FDA’s opinion is not binding on the courts, the guidance that it has provided on the specific subject of this lawsuit may be persuasive on the court.

Takeaway: Marketers need to consider the overall impression created by a product and its positioning in the marketplace, and be careful to describe the product’s ingredients consistent with consumer expectations.