Allulose’s ability to closely mimic the taste and functionality of sugar with fewer calories has made it a go-to sweetener for better-for-you product formulators, but what was once an ingredient in a recipe for success is quickly becoming a key ingredient in a litany of litigation.
In the past month, a wave of proposed class action lawsuits targeting “zero sugar” and “sugar free” claims on products containing allulose have been filed against David Protein, Liquid Death, Liquid IV, WK Kellogg and Kind alleging false advertising and consumer protection violations.
The complaints follow a strikingly similar template, putting other brands making comparable claims on notice that they, too, could face litigation if the legal theory gains traction in the courts.
The basic premise of the cases is that allulose is a monosaccharide – and while many consider it a “rare sugar” because it is found in such small amounts in foods like figs, raisins, jackfruit and molasses, it nonetheless falls within FDA’s regulatory definition of sugar. As a result, plaintiffs argue, claims suggesting that products containing allulose have “zero” or “no” sugar can mislead consumers.
Case against Chobani opened the door
The theory in the cases draws on a case filed against Chobani in 2023 by consumers Jason and Abigail Franco, who argued the “zero sugar” and “sugar-free” marketing on the Chobani Zero Sugar yogurt they bough at a Costco near Chicago was deceptive because it contains allulose.
A lower district court initially dismissed the case on the grounds that FDA enforcement guidance excluded allulose from the “total sugars” required on the Nutrition Facts panel, which would mean that it would not be counted towards the 0.5 gram of sugar threshold set for sugar free and zero sugar claims under the regulations. It also meant that federal law preempted the Francos’ claims.
However, in late July, the US Seventh Circuit Court of Appeals allowed the case against Chobani to proceed after FDA filed an amicus brief claiming the relevant regulation is “unambiguous, and that total sugars as defined in that regulation include all monosaccharides, including allulose.”
It concluded: “The federal requirements at issue are plain – food products cannot be labeled sugar free unless they have less than half a gram of sugar, and sugars include every monosaccharide, including allulose.”
With the federal preemption argument rejected at this stage, Chobani, and potentially other products combining allulose with zero-sugar claims, could face similar allegations of consumer deception in federal courts within the Seventh Circuit.
More broadly, the court decision serves as a reminder that FDA enforcement discretion is just that and not immunity from private consumer lawsuits.
A recipe plaintiffs’ attorneys can follow
The complaints filed against other brands since the Seventh Circuit Court’s decision closely track the theory advanced in the case against Chobani, underscoring its use as a blueprint for broader wave of consumer class action litigation targeting allulose-containing products that make similar claims.
For example, the case brought against Liquid Death closely tracks the arguments made in the case against Chobani, including that allulose is a monosaccharide, which falls within FDA’s regulatory definition of sugar and that the FDA regulation limits ‘sugar free’ claims to products containing less than 0.5 grams of sugar per serving, and that allulose must be counted as sugar for purposes of that threshold.
The complaint furthers the argument that the claims deceive consumers by pointing to a 2021 survey conducted by the International Food Information Council that found only 15% of respondents had heard of allulose, “let alone knew it was a sugar.” Thus, it argues, consumers would reasonably rely on Liquid Death’s Sparkling Energy drinks’ express “0g Sugar” representation rather than understanding the ingredient list to mean that it contained a form of sugar.
What happens next?
As these cases continue to move through the court system, companies marketing allulose-containing products may want to act now “to evaluate and mitigate potential litigation exposure,” advise lawyers with Morrison Foerster in a client alert published Monday.
The alert suggests companies identify all allulose-containing products bearing sugar-related claims that may be vulnerable to similar challenges and evaluate them against FDA standards, including whether allulose exceeds the 0.5-gram threshold.
It also cautions companies not to assume FDA enforcement discretion policy creates a safe harbor for consumer class action litigation.
As the case against Chobani explains, FDA enforcement discretion may indicate only that the agency does not intend to pursue federal enforcement. It does not change the governing regulations or establish that the label complies with them. It also does not prevent consumers from challenging the label under state consumer protection laws, according to the alert.
Finally, it notes, the case brought against Chobani “does not resolve the regulatory treatment of allulose once and for all.”
Rather, it explains, “FDA could undertake new rulemaking, courts outside the Seventh Circuit could disagree with Franco, and defendants in the newly filed cases have yet to present their defenses.”
However, it adds, “the decision has created uncertainty for companies relying on FDA’s allulose enforcement-discretion policy while making affirmative sugar-related claims.”
