More food and beverage companies using the sweetener allulose are facing class action lawsuits over their zero-sugar labels after the FDA sided against the industry in a revived complaint against yogurt giant Chobani.
Last week, Liquid Death and the maker of David protein bars each received a class action complaint targeting their zero-sugar offerings. The lawsuits state that consumers could be misled by the branding because the products contain allulose, a natural sweetener.
In August, a federal judge revived a complaint against yogurt giant Chobani over the use of allulose in its sugar-free products. Chobani had argued the FDA issued guidance in 2020 that the agency wouldn’t take enforcement action against companies as regulators developed final rulemaking on how to define allulose.
However, the FDA's guidance shields companies from agency enforcement action, not consumer litigation. A judge allowed the lawsuit to continue after the FDA weighed in with an amicus brief stating that allulose is included under the legal definition of sugar.
This move has opened the door to the recent lawsuits against other food companies, which also relied on the previous definition of allulose in their sugar-free marketing. The complaint against David cites the Chobani case as precedent.
Allulose is a monosaccharide, and the FDA’s guidance states that sugars are “the sum of all free mono- and disaccharides.” Regulations require foods advertised as sugar-free to contain less than half a gram of sugar.
Companies have argued that allulose shouldn't be subject to sugar labeling rules because of how the sweetener reacts with the body. Chobani said in a statement earlier this month that allulose doesn’t add calories, raise blood sugar or lead to cavities like traditional sugars.
The complaint against David maker Linus Technology MergerSub, was filed Aug. 24 in the U.S. District Court for the Northern District of California. It takes issue with the bar marketing itself as having zero grams of sugar, saying customers paid a premium for the sugar-free products and were “deprived of the benefit of their bargain.”
The lawsuit against Liquid Death was filed Aug. 25 in the U.S. District Court for the Southern District of New York. It focuses on the water brand’s sparkling energy beverages that are marketed as sugar free. The drinks contain about 2 grams of allulose.
