• Earlier this year, a California federal judge dismissed without prejudice the second amended complaint in a proposed class action lawsuit, originally filed on December 20, 2021, against Nestle HealthCare Nutrition, Inc. (“Nestle”), holding that Boost Glucose Control and Boost Glucose Control High Protein product labels would not lead reasonable consumers to believe that the drink would treat or cure diabetes, a chronic disease for which there is no known cure.  Plaintiffs alleged that the Boost products are deceptively labeled because the statements, “glucose control,” “helps manage blood sugar,” and “designed for people with diabetes” misleadingly imply that the products would have some affirmatively therapeutic impact on their blood glucose levels or otherwise mitigate, treat, or prevent pre-diabetes or diabetes.

• On November 7, 2022, the lawsuit over Boost glucose control drinks was permanently dismissed.  Regarding new allegations in the third amended complaint that were added to address earlier deficiencies regarding whether a reasonable consumer would be deceived, the court found:

  • Allegations that the products are sold in the health and nutritional supplement sections of stores, rather than in the grocery aisles, were added to address the point that “no reasonable consumer of the targeted consumer group would expect a novel diabetes treatment to simply appear on grocery shelves out of the blue,” but are not persuasive because the plaintiffs failed to plausibly allege that Nestle held control over placement of the products;

  • FDA and FTC (Federal Trade Commission) cease-and-desist letters regarding sham diabetes treatments, bearing statements such as “keep blood sugar at an optimum level” and “diabetes support supplement,” were intended to support the inference that similar representations on the Boost labels advertise an unproven treatment but have the contrary effect because no such letter was likewise sent to Nestle; and

  • Claims that these individual plaintiffs were duped by the alleged misrepresentations on the Boost labels does not lead to the conclusion that a significant portion of persons with prediabetes or diabetes would similarly believe that a nutritional drink would control a chronic disease.

On the issue of whether the plaintiffs adequately alleged standing based on a price-premium theory, the judge acknowledged the plaintiffs’ evidence that Boost glucose control drinks are priced higher than other nutritional drinks but noted that the plaintiffs still did not allege specific facts relevant to their particular purchases.

• It is not clear if the statements on Nestle’s Boost glucose control drinks may have been deemed misleading for the general public as opposed to the targeted consumers with diabetes to whom the court attributed some level of savviness in understanding “clear designations of the nutritional contents on the front of the label,” which together with descriptions of the products as nutritional drinks, the court found “demonstrate that the products are a food that will necessarily impact glucose levels, not a health supplement or a drug that would treat the chronic disease.”