New Suits Raise Stakes After 7th Circ. 'Zero Sugar' Ruling

During the first two weeks of September, several of the country's most recognizable consumer brands have joined a rapidly growing docket of allulose sweetener litigation.

New proposed class actions in multiple federal district courts are challenging claims of "zero sugar," "0g sugar" and "no added sugar" on products ranging from gummy vitamins to dark chocolate chips. Each complaint cites the same source: the U.S. Court of Appeals for the Seventh Circuit's July 27 decision in Franco v. Chobani LLC.

These filings are not isolated. They follow an August wave of suits against a range of major food, beverage and consumer health companies, all challenging claims that allulose-sweetened products contain zero sugar or no added sugar.

The clustering, speed and consistency of the theory across such varied defendants suggest something more durable than a single labeling dispute. Franco appears to have handed the plaintiffs bar a template theory that is being replicated file for file, and the risk extends well beyond products that are labeled as "sugar free."

A Regulatory Disconnect

Allulose is a naturally occurring monosaccharide that is roughly 70% as sweet as table sugar, so manufacturers typically use it in bulk, often several grams per serving, rather than the trace amounts used for high-intensity sweeteners. That volume makes allulose attractive for products that are marketed as containing little or no sugar, and it is also the flashpoint in the current litigation wave.

The U.S. Food and Drug Administration regulations define "sugars" to include all free mono- and disaccharides, and a product may be labeled as "sugar free" only if it contains less than half a gram of sugar per serving. Similar thresholds govern "no added sugar" claims.

Allulose, a monosaccharide, falls within that definition on the face of the text. In 2020, however, the FDA issued nonbinding guidance exercising enforcement discretion to permit exclusion of allulose from the total sugars and added sugars lines of the nutrition facts panel, and to allow a reduced calorie value. That guidance did not amend the definition of sugars, nor did it touch the separate regulations governing front-of-package claims like "sugar free" and "zero sugar."

The Seventh Circuit seized on that gap in Franco. The plaintiffs alleged that Chobani's "zero sugar" yogurt was falsely labeled because each serving contained roughly 4 grams of allulose. The U.S. District Court for the Northern District of Illinois initially dismissed the case on the theory that the FDA's guidance excluded allulose from the definition of sugar.

On appeal, the Seventh Circuit asked the FDA for its views. The agency took the position that its regulations unambiguously include all monosaccharides, and that the 2020 guidance was only enforcement discretion, not a reinterpretation of the rule.

The panel agreed and remanded for further proceedings, holding that allulose remains a sugar under the regulation, that the "zero sugar" claim was not preempted and that the plaintiffs plausibly alleged deception. Chobani still maintains that its nutrition facts panel is accurate.

The result is that a company can be in good standing with the FDA's enforcement posture on the nutrition facts panel and still face a state law claim over its front-of-package sugar claims that survives a motion to dismiss. Enforcement discretion is not a safe harbor at the pleading stage - and Franco confirms that courts applying state law are free to treat it that way. Whether these claims ultimately succeed on the merits remains to be seen.

"Zero Sugar," "Sugar Free" and "No Added Sugar" Claims

Franco itself concerned an absolute "zero sugar" claim, but the theory has proven to be readily transferable. Within weeks of the decision, plaintiffs filed suit against manufacturers and retailers across the food, beverage and consumer health sectors, targeting products ranging from yogurt and cereal to gummy vitamins, protein bars and chocolate.

Each complaint hinges on the same core allegation: Allulose is a sugar under the federal definition, the product contains an amount well above the de minimis threshold, and the label's unqualified sugar claim is therefore false and misleading under state consumer protection statutes.

Some newer complaints go further, pointing to a regulatory carveout that permits a "sugar free" claim on a product containing a sugar ingredient, only where the ingredient statement carries an asterisk keyed to a footnote disclosing a "dietarily insignificant amount of sugar." Where that disclosure is missing, plaintiffs argue the claim is doubly deficient. That is a
more granular, auditable theory, suggesting the plaintiffs bar is refining the approach with each filing.

The claims also reach "no added sugar" language, an area Franco itself did not resolve. That type of claim turns on whether sugar was introduced during processing, not on total quantity in the finished product. Companies should not assume Franco's reasoning on absolute "zero sugar" claims maps cleanly onto claims of "no added sugar" without independent analysis.

A Litigation Campaign, Not a Coincidence

Several features point to a coordinated campaign. The timing is unusually tight, as at least nine allulose-labeling suits have been filed against nine different manufacturers and retailers within roughly six weeks of Franco.

The filings also span multiple districts, including California, New York, New Jersey, and Illinois. These complaints plead claims under their respective forum states' consumer protection laws, while relying on the Seventh Circuit's decision in Franco, including in courts where that decision is persuasive rather than binding.

And the pleadings are uniform, each alleging the product's specific allulose content, computing the multiple by which it exceeds the half gram threshold, quoting Franco on the FDA's position and pleading materially identical causes of action.

Companies that treated the August wave as a temporary reaction to Franco should recalibrate. The pace has not slowed and the range of categories — yogurt, gummy vitamins, cereal, protein bars, beverages and chocolate — shows that the theory travels easily across the food and beverage sector.

Why FDA Guidance Is Not a Reliable Shield

The central compliance lesson of Franco is that the FDA's 2020 enforcement discretion guidance does not function as a safe harbor against private litigation at the pleading stage, even though many companies reasonably built their labels around it.

Enforcement discretion describes what the FDA has decided not to prioritize, but it does not amend the regulatory text and, at least in the Seventh Circuit, it does not shield a defendant from surviving a motion to dismiss under state consumer protection law.

Franco's reasoning, which was reinforced by the FDA's amicus position, was that the 2020 guidance never purported to redefine sugars for purposes of nutrient content claims. It addressed only what appears in the nutrition facts panel. Whether that reasoning ultimately defeats these claims on the merits is a different question, one that Franco did not reach.

That distinction matters because the two labeling elements sit under different regulatory provisions. A company that relied on the guidance to omit allulose from the sugar lines of the nutrition facts panel was likely acting consistently with the FDA's enforcement posture.

However, if the same product also carries an unqualified "zero sugar" claim on the principal display panel, Franco holds that such a claim survives a motion to dismiss on preemption grounds — and its reasoning likely extends to "sugar free" claims resting on the same regulatory definition, though it did not directly address "no added sugar" claims. That is a pleading stage ruling, not a final determination of liability, but it is enough to put those claims past the courthouse door and into discovery, which is where the real pressure begins.

Preemption After Franco and Monsanto Co. v. Durnell

Preemption is the natural first line of defense, and Franco narrows — but doesn't eliminate — that defense at the pleading stage. The Food, Drug and Cosmetic Act expressly preempts state food-labeling requirements that are not identical to the federal standard, and defendants have long argued that a claim attacking a federally permissible label is
preempted.

Franco rejected that argument at the motion to dismiss stage where the claim rests on the FDA's core definition of sugars, reasoning that a claim that a product is not truly sugar free does not impose a requirement that is different from federal law, but enforces the same threshold that the FDA's own regulations set.

Seventh Circuit precedent has long held that federal silence on a specific representation does not immunize an affirmatively misleading voluntary claim from a state law challenge.[3] But Franco only resolved preemption; the reasonable consumer defense, primary jurisdiction arguments and other merits defenses remain open on remand.

The U.S. Supreme Court's June decision in Monsanto Co. v. Durnell, though arising under the federal Insecticide, Fungicide and Rodenticide Act, rather than the Food, Drug and Cosmetic Act, reinforces the same basic proposition: Agency permission to sell or register a product does not, by itself, preempt state claims imposing a different or an additional obligation.

The court held that the U.S. Environmental Protection Agency's approval of a pesticide label does not itself create a federal requirement with preemptive force, rejecting the argument that registration shields against state failure-to-warn liability.

Applied here, a federal agency's willingness to allow conduct — whether it's the EPA registering a label or the FDA declining to enforce a nutrition facts requirement — is analytically distinct from an affirmative federal requirement that would trigger preemption.

However, preemption arguments are not entirely foreclosed. Franco binds only the Seventh Circuit, and defendants elsewhere can still argue that the FDA's guidance deserves more preemptive weight, particularly for "no added sugar" claims, which Franco did not address, or where a state theory would demand something beyond what federal regulation and the
guidance together require.

The Supreme Court's 2005 ruling in Bates v. Dow Agrosciences LLC, and the case's progeny, preserve the distinction between parallel and additional state requirements on a claim-byclaim basis. But treating the FDA's allulose guidance as a categorical preemption defense against "zero sugar" and "sugar free" claims is no longer viable, at least in the Seventh Circuit and likely beyond it.

What Companies Should Audit Now

Retailers, private label sellers, food and beverage manufacturers, and consumer health brands using allulose should treat this as an active risk, not a theoretical one, and take the following steps:

• Inventory every allulose-containing product and catalog every sugar-related claim on it and its packaging, e-commerce listings, retailer pages and advertising, not only "sugar free" claims, but also "zero sugar," "0g sugar" and "no added sugar."
• Do not treat the 2020 FDA guidance alone as sufficient support for an unqualified front-of-package sugar claim; distinguish what it permits on the nutrition facts panel from what nutrient content claim regulations require on the principal display panel.
• Where an audit reveals a genuine gap, weigh proactive label revisions against the litigation risk of an admission, because waiting for a complaint is no longer a lowprobability contingency.

Conclusion

Franco v. Chobani did not resolve whether any "zero sugar" claims are actually deceptive; it resolved that such claims are not preempted by federal law and can proceed past a motion to dismiss. That is a procedural milestone, not a merits victory, but it is the milestone that matters most to the plaintiffs bar: a portable theory — built on a genuine, unresolved tension between the FDA's enforcement posture and its own regulatory text — that has now cleared the first major hurdle.

Recent weeks show that theory deployed against an expanding roster of products and claim formats. Companies that assumed the FDA's allulose guidance was a compliance safe harbor should revisit that assumption now, before the next complaint names them.

Republished with permission. This article, "New Suits Raise Stakes After 7th Circ. 'Zero Sugar' Ruling," was originally published in Law360 on October 6, 2026. (login required)