This week, during oral arguments on Campbell Soup Company’s (Campbell) motion to dismiss, a California federal judge raised significant questions about the viability of a class action lawsuit that alleges that the labels for Campbell’s and Pepperidge Farm, Inc.’s Goldfish-brand snack products (the “Goldfish Products”) mislead consumers. As previously reported, 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.”

U.S. District Judge James Donato suggested that a reasonable consumer could not possibly be misled into thinking that the Goldfish Products are a “diet” snack because the Goldfish package also features a prominent front-of-pack “140 calories per serving” representation.   Judge Donato observed “it’s just as likely a consumer would see 140 calories and say this is not a diet food as it is they would look at the sugar and say I’m going to ignore the 140 calories and think this is low calorie, which makes no sense to me.” The judge did not issue a ruling at the conclusion of the hearing.

Importantly, FDA recently clarified that the additional statements required when making sugar content claims defined in Section 101.60(c) are not required for quantitative claims about sugar. See Industry Resources on the Changes to the Nutrition Facts Label.