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.