Morgan et al v. Wallaby Yogurt Company, Inc.

Filing 73

ORDER RE STAY. Signed by Judge James Donato on 08/20/2015. (jdlc2S, COURT STAFF) (Filed on 8/20/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FRANK MORGAN, et al.,

Case No. 13-cv-00296-JD

Plaintiffs,
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v.

ORDER RE STAY

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WALLABY YOGURT COMPANY, INC.,
Defendant.

United States District Court
Northern District of California

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This is a consumer class action that challenges defendant Wallaby Yogurt Company, Inc.’s

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use of the term “evaporated cane juice” (ECJ) -- instead of “sugar” or a similar term -- on its labels

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listing the ingredients of its food products. Dkt. No. 35.

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The Court previously granted defendant’s motion for reconsideration (Dkt. No. 64) and

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stayed the case (Dkt. No. 72) because it agreed with the reasoning in cases such as Swearingen v.

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Amazon Pres. Partners, Inc., No. 13-CV-04402-WHO, 2014 WL 3934000 (N.D. Cal. Aug. 11,

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2014). See also, e.g., Gitson v. Trader Joe’s Co., 63 F. Supp. 3d 1114 (N.D. Cal. 2014); Figy v.

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Lifeway Foods, Inc., No. 13-cv-04828-TEH, 2014 WL 1779251 (N.D. Cal. May 5, 2014).

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Mary Swearingen v. Late July Snacks LLC, Case No. 3:13-cv-04324-EMC (N.D. Cal.), is

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another case in this district that has been stayed for quite some time “pending the FDA’s decision

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. . . regarding whether ‘evaporated cane juice’ (ECJ) is a common or usual name for sugar.” See

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Dkt. No. 78 in Case No. 13-cv-4324. In that case, Judge Chen consequently requested that the

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Commissioner of the Food and Drug Administration shed some light on “whether a final

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determination regarding ECJ ‘is feasible within agency priorities and resources,’” and specifically

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“if the FDA is likely to issue any further guidance regarding ECJ within the next 180 days.” Id.

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The FDA has recently responded that while it is “actively working on a final guidance” to address

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this issue, it “cannot commit to issuing a decision within 180 days,” and that it instead “currently

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anticipates that a final guidance will issue before the end of 2016.” Dkt. No. 80 in Case No. 13-

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cv-4324.

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In light of this statement from the FDA, the Court directs plaintiffs and defendant in this

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case to file by September 9, 2015, a statement of no more than five pages each, addressing

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whether and why the Court should (or should not) continue to stay this case. Responses to the

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other side’s submission are not permitted, and no hearing will be held, unless otherwise ordered by

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the Court.

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IT IS SO ORDERED.
Dated: August 20, 2015

United States District Court
Northern District of California

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________________________
JAMES DONATO
United States District Judge

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