November 2022 Food Law Newsletter

Plaintiffs filed a lawsuit alleging deceptive marketing of defendant’s product which was advertised as being “sugar free,” but which had four grams per serving of allulose, a naturally occurring sweetener. The district court deferred to enforcement guidance from the United States Food and Drug Administration regarding whether allulose is a sugar under federal law and found that the plaintiffs’ claims were preempted and dismissed the case. The Seventh Circuit reversed, finding that allulose is a sugar under the relevant federal regulation and that the plaintiffs plausibly alleged consumer deception so that their lawsuit may proceed. (ROVNER and MALDONADO, concurring)