Seventh Circuit Revives Nationwide “Zero Sugar” Class Action, Holds Allulose Is A Sugar Under FDA Regulations

In Franco v. Chobani, LLC, No. 25-2087, the Seventh Circuit reversed the district court’s decision to dismiss a putative nationwide class action alleging that the defendant deceptively marketed its yogurt as “sugar free” despite each serving containing four grams of allulose. The district court had found that the plaintiff’s claims were preempted, deferring to a U.S. Food and Drug Administration (“FDA”) guidance document published in October 2020 reflecting that the FDA intended to exercise its enforcement discretion for manufacturers excluding allulose from “Total Sugars” declarations on Nutrition Facts panels. 

At the Circuit panel’s invitation, the FDA filed an amicus brief taking the position that its own regulation, 21 C.F.R. § 101.9(c)(6)(ii), unambiguously defines “Total Sugars” as all free mono- and disaccharides, with glucose, fructose, lactose, and sucrose merely listed as examples, not a limitation to substances sharing their physiological effects. The Seventh Circuit agreed, finding that “food products cannot be labeled sugar free unless they have less than half a gram of sugar, and sugars include every monosaccharide, including allulose.” In finding that allulose qualifies as a sugar under federal law, the panel further held that the “sugar free” claim on the defendant’s product was inconsistent with the FDA’s regulation, meaning the plaintiff’s state-law claims imposed requirements identical to the federal standard and were not preempted. Accordingly, the Seventh Circuit reversed and remanded for further proceedings.

The Franco decision has significant implications for manufacturers who previously relied on the FDA’s guidance document in labeling their products. Notably, since the decision in Franco, a veritable wave of similar false advertising class actions have been filed against food companies across the United States. As of the date of publication, Sheppard’s food and beverage team has identified more than a dozen such lawsuits alleging deceptive advertising claims related to “sugar free” and other similar “zero sugar” labeling.

Consequently, companies using allulose or other non-glucose sweeteners will want to review any “sugar free” and similar “zero sugar” claims that they are using against the regulatory definition itself, not FDA guidance.