Blog: The Daily Intake
More Class Actions Allege ‘Zero Sugar’ Claims Misleading on Products Containing Allulose
- Plaintiffs’ lawyers are continuing to file class action lawsuits alleging that “zero sugar” claims on products containing allulose are misleading consumers, with products ranging from dietary supplement gummies to candies to baking mixes being hit in the past week.
- As we have previously blogged, FDA has stated its intent to exercise enforcement discretion for the exclusion of allulose from the amount of total and added sugars on the label. However, a recent federal court decision in Illinois found that because allulose is considered a sugar, its inclusion in a product precludes the product from being labeled with claims such as “zero sugar” or “no added sugar.”
- Allulose is a monosaccharide that is used as a sugar substitute in various foods and beverages and that meets the definition of “sugar” in FDA’s nutrition labeling regulations at 21 CFR 101.9(c)(6)(ii). However, in FDA’s enforcement discretion guidance, the Agency explained that because allulose does not behave like other sugars in the body, it does not need to be declared as a sugar or added sugar. In FDA’s regulations governing the use of nutrient content claims for the calorie content of foods at 21 CFR 101.60, “sugar free” and “no added sugar” type claims may be made if, among other requirements, the food contains less than 0.5 g of sugar or no amount of sugars, respectively.
- The recent lawsuits allege that reasonable consumers take the claims at face value and “wouldn’t know that allulose is an added sugar.” According to the plaintiffs, because allulose meets FDA’s definition of “sugar,” products containing the sweetener do not qualify for these claims.
- One complaint references FDA’s enforcement discretion guidance but notes that the discretion “creates no rights and binds neither the agency nor the public” and is “pending a rulemaking that never occurred.” The plaintiff further alleges that FDA confirmed in an amicus brief in the decision cited above that the definition of sugar includes allulose and that “[a]n agency’s decision not to enforce its own regulation is not a federal ‘requirement’ . . . and it does not authorize a nutrient content claim that the regulation forbids.” Therefore, according to the plaintiff, FDA’s enforcement discretion does not permit companies to make such claims on products containing allulose.
- Keller and Heckman will continue to report on lawsuits targeting sugar claims on products containing allulose.