January 19, 2022

Volume XII, Number 19

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January 18, 2022

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Consumers Allegedly Deceived by Sugar Claims

  • A class-action lawsuit—filed on behalf of consumers in California, New York, and nationwide—alleges that Campbell Soup Company and Pepperidge Farm, Inc.’s Goldfish-brand snack products (the “Goldfish Products”) are misleadingly labeled.  Plaintiffs allege that the Goldfish products do not comply with 21 C.F.R. § 101.60 (“Nutrient content claims for the calorie content of foods”) because they claim “0g Sugars” or “0g Total Sugars” (i.e, sugar free claims) without disclosing that they are “not a low calorie food,” “not a reduced calorie food,” or “not for weight control.”  Plaintiffs further allege that the sugar free claims misled consumers into thinking they were purchasing low calorie foods and gave Defendants a competitive advantage over similarly-positioned products in the market.

  • Among other criteria, Section 101.60 requires that foods claiming to be “sugar free,” “free of sugar,” “no sugar,” “zero sugar,” “without sugar,” “sugarless,” “trivial source of sugar,” “negligible source of sugar,” or “dietarily insignificant source of sugar” contain less than 0.5 g sugar per serving and be labeled with a “not a reduced calorie food,” “not a low calorie food, “ or “not for weight control” disclaimer if the foods do not also meet the “low calorie” or “reduced calorie” criteria.  The regulation does not reference the quantitative claims “0g Sugars” or “0g Total Sugars,” although Plaintiffs allege that they are substantively identical to the claims delineated in the regulation.

  • We remind readers that there is no private right to enforce FDA’s labeling regulations and that a violation of a labeling regulation is not per se proof of consumer deception. The court instead must decide whether a “reasonable consumer” would be deceived by the labeling.  In recent examples like the Champion Petfoods Case and Manuka Honey Case, the courts have required extrinsic evidence of consumer deception and have considered the full range of information available to the consumer, thus making it more difficult for plaintiffs to make this showing.

© 2022 Keller and Heckman LLPNational Law Review, Volume XI, Number 222
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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