Barely two months after the Seventh Circuit held in Franco v. Chobani, LLC, 184 F.4th 599 (7th Cir. 2026), that state-law challenges to Chobani’s “Zero Sugar” nutrient content claims were not preempted, three consumers sued Starbucks on a similar theory – this time based on the lactose in Starbucks’ line of protein drinks with “Sugar-Free” in the name. Walsh v. Starbucks Corp., No. 2:26-cv-03745 (W.D. Wash. filed Oct. 2, 2026). The complaint targets eight beverages – hot and iced versions of the Sugar-Free Vanilla and Caramel Protein Lattes and Protein Matchas – that, according to Starbucks’ own published nutrition information, contain between 13 and 21 grams of sugar per venti serving, all of it from milk.
Franco opened a deep well of potential claims for the plaintiffs’ bar: sugar-related nutrient content claims. In the weeks after the decision, plaintiffs challenged “0g Sugar” and “Zero Sugar” claims on Liquid Death beverages, Williamson v. Supplying Demand, Inc., No. 4:26-cv-08839 (N.D. Cal. filed Aug. 24, 2026); “Zero Added Sugar” claims on Special K cereal, Bender-Long v. WK Kellogg Co., No. 2:26-cv-09438 (C.D. Cal. filed Aug. 24, 2026); and “ZEROg Added Sugar” claims on KIND bars, Coprew v. KIND LLC, No. 1:26-cv-07380 (S.D.N.Y. filed Aug. 28, 2026). And on October 20, 2026, plaintiffs sued Target over “Sugar-Free” claims on electrolyte drink mixes that allegedly list allulose as the first ingredient. Williams v. Target Corp., No. 1:26-cv-12870 (N.D. Ill. filed Oct. 20, 2026).
What makes these suits notable is that following FDA’s lead was not enough to get Chobani out of the case at the pleading stage. In guidance finalized in October 2020, FDA announced that it would exercise enforcement discretion to let manufacturers exclude allulose – a rare sugar that FDA recognized produces only a negligible increase in blood sugar and insulin – from the Total Sugars and Added Sugars declarations on the Nutrition Facts Panel, and to count it at 0.4 calories per gram. That relief was narrow: it did not amend the regulatory definition of sugars, and it said nothing about nutrient content claims on the front of the package.
Chobani read the guidance as confirmation that allulose need not be treated as a sugar. Because its yogurt could declare 0 grams of sugar on the Nutrition Facts Panel, Chobani labeled the product “Zero Sugar,” and FDA had even approved its labeling in connection with a temporary market permit (TMP) for the product. The Seventh Circuit held that this reliance could not carry the weight Chobani placed on it. The guidance was “an announcement of a change in enforcement policy,” not an interpretation of the regulation; allulose remains a sugar; and FDA’s choice not to enforce the Nutrition Facts Panel requirement did not extend to sugar claims made on a package. As the court put it, Chobani “is a sophisticated actor and should have been aware that the FDA’s decisions about its enforcement priorities would not immunize the company from suits based on state law.” Franco, 184 F.4th 599. That gap – between what FDA declines to enforce and what federal law actually requires – is what plaintiffs are now exploiting.
The lesson reaches well beyond allulose. FDA defines sugar by chemistry, while food science keeps producing sugars the body treats differently. When FDA bridges that gap through nonenforcement rather than rulemaking, the distance between what the Nutrition Facts Panel may omit and what the front of the package may claim becomes litigation risk. Put simply, FDA nonenforcement is not compliance. Below, we explain the regulatory framework, what Franco decided, where the next suits are likely to come from, how Chobani is fighting back on remand, what FDA has planned, and what companies can do now.
Background: How Federal Law Regulates Sugar on the Label
Two Label Statements, Two Different Rules: The Nutrition Facts Panel vs. Sugar Nutrient Content Claims
Sugar shows up on a food label in two different ways, and each is governed by its own regulation. The first is the Nutrition Facts Panel, which is mandatory for most packaged foods. 21 C.F.R. § 101.9. The second is any nutrient content claim about sugar that a manufacturer chooses to make elsewhere on the label – most often on the front of the pack. 21 C.F.R. § 101.60(c).
A nutrient content claim is a label statement that expressly or implicitly characterizes the level of a nutrient – think “low sodium,” “reduced fat,” or as relevant here, “sugar free.” 21 C.F.R. § 101.13(b). Manufacturers don’t have to make these claims, but if they do, they must use the FDA’s defined terms and meet the FDA’s criteria for those terms. 21 C.F.R. § 101.60(a). And because the FDCA preempts state requirements for nutrient content claims that are “not identical to” the federal ones, the federal criteria are also the yardstick plaintiffs use in state-law consumer protection suits. 21 U.S.C. § 343-1(a)(5).
The Nutrition Facts Panel. Section 101.9 requires two sugar declarations on the Nutrition Facts Panel. First, “Total Sugars”: grams per serving, to the nearest gram, defined as “the sum of all free mono- and disaccharides (such as glucose, fructose, lactose, and sucrose).” 21 C.F.R. § 101.9(c)(6)(ii). Second, “Added Sugars”: sugars added during processing or packaged as such, declared as “Includes ‘X’ g Added Sugars” with a percent Daily Value. § 101.9(c)(6)(iii), (d)(7)(ii). Either line can be omitted below 1 gram per serving – but only “if no claims are made about sweeteners, sugars, . . . or sugar alcohol content.” § 101.9(c)(6)(ii)–(iii).
A relatively new requirement. The Added Sugars line is a relatively recent addition. On May 27, 2016, FDA issued its final rule revising the Nutrition Facts and Supplement Facts labels. Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 81 Fed. Reg. 33,742 (May 27, 2016). Before that rule, the panel declared only “Sugars”; the 2016 rule renamed that line “Total Sugars” – without changing the underlying definition – to make room for the new, separate “Added Sugars” declaration and its percent Daily Value. Id. at 33,798. The same 2016 rule is where FDA told industry that allulose, “as a monosaccharide, must be included” in Total Sugars and Added Sugars pending future rulemaking. Id. at 33,795–96.
Why chemistry controls. When FDA first adopted its definition of sugars in 1993, it expressly rejected suggestions to define sugars by physiological characteristics – digestibility, caloric value, glycemic index, and insulin response – and chose instead to count saccharide units. 58 Fed. Reg. 2079, 2098 (Jan. 6, 1993). That choice has aged awkwardly as rare sugars reached the market. Allulose received its first GRAS “no questions” response in 2012 (GRN 400). In the 2016 final rule, FDA said allulose must be counted as a sugar pending future rulemaking. In 2019, FDA issued draft guidance – finalized in October 2020 – announcing enforcement discretion to exclude allulose from Total Sugars and Added Sugars and to use 0.4 calories per gram in calculating calories. All other sugars are calculated using 4 calories per gram. The promised rulemaking has not occurred, and the guidance said nothing about nutrient content claims on the front of the package.
Express sugar claims outside the Nutrition Facts Panel. A “sugar free,” “no added sugar,” or “reduced sugar” statement on the front of the pack is something else entirely: a voluntary nutrient content claim that may be made only if it uses a term FDA has defined and meets that term’s criteria, including any required disclosures (such as the calorie disclaimer discussed below). 21 C.F.R. § 101.60(a), (c). Making the claim also must comply with the general nutrient content claim rules in § 101.13, and the food must still carry a compliant Nutrition Facts Panel. § 101.60(a)(2)–(3).
The two frameworks differ in several practical ways:
- Mandatory v. Voluntary. The Nutrition Facts Panel declarations are mandatory; the FDCA deems a food misbranded without them. 21 U.S.C. § 343(q)(1)(D). A sugar nutrient content claim is voluntary – the obligations attach only when a company chooses to characterize its sugar content. 21 U.S.C. § 343(r); 21 C.F.R. § 101.13(b).
- Rounding v. Precision. The Nutrition Facts Panel allows rounding to the nearest gram and allows a declaration of zero below 0.5 g, and FDA compliance testing tolerates sugars up to 20 percent above the declared value. § 101.9(c)(6)(ii), (g)(5). A “sugar free” claim has no such cushion: the food must actually contain less than 0.5 g of sugars per reference amount and per labeled serving. § 101.60(c)(1)(i).
- Interaction. The frameworks share one definition of sugars – § 101.60(c)(1)(i) incorporates § 101.9(c)(6)(ii) – but otherwise run on separate tracks. Making a nutrient content claim can change the Nutrition Facts Panel: the under-1-gram exemption from declaring sugars disappears once any sugar claim is made. § 101.9(c)(6)(ii)–(iii). But relief on the Nutrition Facts Panel does not carry over to claims. FDA’s allulose guidance addressed only the Total Sugars and Added Sugars declarations; “[t]he agency made no such statement with respect to nutrient content claims.” Brief for the United States as Amicus Curiae at 7, Franco v. Chobani, LLC, No. 25-2087 (7th Cir. June 29, 2026).
- Enforcement. Both are enforced by FDA through the FDCA’s misbranding provisions, but state consumer protection laws may also enforce requirements “identical” to the federal ones. 21 U.S.C. § 343-1(a); Turek v. General Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011). FDA can choose not to enforce a requirement – as it did for allulose on the panel – but that choice binds only FDA. At least according to Franco, it does not stop a state-law plaintiff from suing over a front-of-pack claim that fails the federal criteria.
The Litigation Landscape: What The Seventh Circuit in Franco Decided
Both Franco and Walsh challenge “sugar free” nutrient content claims on products with more than 0.5 grams of sugar per serving – allulose in Chobani’s yogurt, lactose in Starbucks’ drinks. Allulose is the harder case for plaintiffs: FDA has recognized that it produces only a negligible increase in blood sugar and insulin and does not promote cavities, and FDA lets manufacturers leave allulose out of the Total Sugars and Added Sugars lines on the Nutrition Facts Panel. But FDA never said allulose is not a sugar, and it never extended that relief to sugar claims elsewhere on the package.
Relying on the enforcement discretion, Chobani put “Zero Sugar” and “no sugar” nutrient content claims on the front of its Chobani Zero Sugar yogurt. The district court dismissed the suit as preempted, deferring to FDA’s guidance. Franco v. Chobani, LLC, 789 F. Supp. 3d 584 (N.D. Ill. 2025). The Seventh Circuit reversed, in reasoning that reaches any company relying on FDA guidance. (For our earlier discussion of the preemption holding, see our previous article here: Seventh Circuit Holds Allulose-Based ‘Sugar Free’ Claim Not Preempted | Thompson Coburn LLP.)
First, the court held that allulose is a sugar: the regulation counts “all free mono- and disaccharides,” and the parenthetical “(such as glucose, fructose, lactose, and sucrose)” lists examples rather than limiting the category. Second, the court held that the district court erred in deferring to the 2020 allulose guidance. The regulation is unambiguous, and in any event the guidance was “an announcement of a change in enforcement policy,” not an interpretation of § 101.9(c)(6)(ii), so it was not entitled to controlling weight – and even read as an interpretation, it would have conflicted with FDA’s 2016 position. The court also found persuasive the amicus brief FDA filed at the court’s invitation, which argued that the definition of sugars unambiguously includes allulose. Third, because the plaintiffs seek to enforce standards identical to the federal requirements, 21 U.S.C. § 343-1(a)(5) does not preempt their claims. The court left Chobani’s remaining Rule 12(b)(6) arguments – including a separate preemption theory based on FDA’s approval of its labels – for the district court on remand.
The court also rejected Chobani’s alternative argument that the complaint failed to allege consumer deception. Chobani argued that consumers would not be deceived by a product promising no sugar but containing allulose, because consumers care only about sugars with the adverse health effects of traditional sugars. “Chobani’s arguments miss the mark. Whether reasonable consumers care about the existence of allulose in their yogurt isn’t the same thing as asking whether reasonable consumers would be deceived by it.” Franco, 184 F.4th at 607 (emphasis in original).
Beyond Allulose: Where the Next Suits Will Come From
Lactose and the Walsh complaint. Walsh shows that the theory does not depend on a novel sugar. If Starbucks moves to dismiss, the court will not need to address the thorny enforcement-discretion issue: FDA has issued no enforcement discretion for lactose, and lactose is one of the four sugars the regulation names expressly. As the complaint puts it, the agency “already spoke on this issue, 33 years ago.” The complaint also previews several theories that go beyond Franco:
- Restaurant menus count. The beverages are made to order and carry no printed label, but the complaint relies on 21 C.F.R. § 101.13(q)(5), which applies the nutrient content claim rules – including the subpart D definition of “sugar free” – to claims on food served in restaurants. The alleged “label” is the product name as it appears on in-store menus, the Starbucks website and app, and DoorDash, Uber Eats, and Grubhub.
- A product name is a claim. Starbucks put “Sugar-Free” at the front of each product name. The complaint alleges that the actual sugar content appeared only in small-print nutrition information hidden by a persistent website footer, while the “Add to Order” button remained visible – and that truthful information elsewhere cannot cure an affirmative misrepresentation. See Williams v. Gerber Prods. Co., 552 F.3d 934, 939–40 (9th Cir. 2008).
- The failure to include a calorie disclaimer is a separate violation. Even a beverage under the 0.5-gram threshold cannot be called “sugar free” unless it is “low calorie” or “reduced calorie,” or the claim is accompanied each time by “not a reduced calorie food,” “not a low calorie food,” or “not for weight control.” 21 C.F.R. § 101.60(c)(1)(iii). The drinks run roughly 270 to 340 calories, and the complaint alleges that Starbucks never used the disclaimer – a violation that does not depend on sugar content at all.
- Starbucks had lawful alternatives. Starbucks’ launch materials described the Sugar-Free Vanilla Protein Latte as having “no added sugar” and the Sugar-Free Vanilla Protein Matcha as made “without the added sugar,” and its original announcement promised “sugar-free and unsweetened choices.” The complaint uses those statements to argue that Starbucks understood the difference and had lawful alternatives available under § 101.60(c)(2) – but chose the one term the regulation prohibits for these products.
- Getting ahead of the defenses. The complaint pleads around preemption, alleging that it seeks only to enforce requirements identical to § 101.60(c)(1) and that California’s Sherman Law adopts those federal requirements. It also argues that the Supreme Court’s recent preemption decision – which Chobani may invoke on remand – does not apply, because FDA does not review or approve restaurant menu names and Starbucks holds no FDA approval for them.
Tagatose is on the same path. On November 21, 2025, FDA told Bonumose, Inc. that it intends to exercise enforcement discretion to allow D-tagatose to be excluded from Total Sugars and Added Sugars and to be calculated at 1.5 calories per gram. That is the same mechanism FDA used for allulose. The letter does not amend the definition of sugars and is silent on nutrient content claims. Indeed, FDA previously declined to exclude tagatose from the definition of sugars, refusing in 2002 to “allow a labeling claim identifying a sugar as a nonsugar.” 67 Fed. Reg. 71,461, 71,464–66 (Dec. 2, 2002). Tagatose received its first GRAS “no questions” response in 2001 (GRN 78) but waited 24 years for relief on the sugar declarations; allulose waited seven, measured from GRN 400 in 2012 to FDA’s 2019 draft guidance.
“No added sugar” claims are next in line. Franco addressed an absolute “sugar free” claim. The KIND and Kellogg suits test “no added sugar” claims, which turn on § 101.60(c)(2) – including whether a sugar such as allulose was added during processing. Franco did not resolve how its reasoning applies to those claims.
Chobani Fights Back on Remand
On remand, the plaintiffs filed a First Amended Class Action Complaint that narrows the case to a single Illinois class asserting claims under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), money had and received, unjust enrichment, and declaratory relief, and that seeks certification of a Rule 23(c)(4) issue class on likely consumer deception. First Am. Class Action Compl., Franco v. Chobani, LLC, No. 1:23-cv-03047 (N.D. Ill. Sept. 15, 2026), ECF No. 59. The amended complaint also adds a second regulatory theory: a “sugar free” claim is barred under § 101.60(c)(1)(ii) when the food contains an ingredient that is a sugar, unless that ingredient is marked with an asterisk referring to a statement such as “adds a trivial amount of sugar.” Chobani asterisked milk and juice concentrate, but not allulose.
Chobani has answered and asserted four affirmative defenses that preview the next phase of the fight: (1) preemption, relying on alternative theory and on the TMP FDA issued under 21 C.F.R. § 130.17; (2) ICFA’s safe harbor for conduct “specifically authorized” by a federal regulator, 815 ILCS 505/10b(1), based on the TMP and the allulose guidance; (3) primary jurisdiction; and (4) failure to mitigate damages. Answer, Franco, No. 1:23-cv-03047 (N.D. Ill. Oct. 15, 2026), ECF No. 63. The TMP arguments will test the limits of the Seventh Circuit’s observation that the permit “said nothing about state law consumer protection suits” – particularly because Chobani sought the TMP to deviate from the yogurt standard of identity by using ultrafiltered nonfat milk, not to authorize its sugar claims.
What FDA Has Planned
FDA has two sugar-related labeling rulemakings in motion. First, its January 2025 front-of-package proposal would require most foods bearing a Nutrition Facts label to display a “Nutrition Info” box rating saturated fat, sodium, and added sugars as “Low,” “Med,” or “High.” Food Labeling: Front-of-Package Nutrition Information, 90 Fed. Reg. 5426 (proposed Jan. 16, 2025). Second, FDA’s Unified Agenda lists a proposed rule on Nutrient Content Claims for Added Sugars (RIN 0910-AJ20), targeted for December 2026, that would define a new “low added sugar” claim, update the definition of added sugars used in existing “no added sugar” claims to match the Nutrition Facts declaration, and conform claim terminology (for example, “sugar” to “sugars”). That second rule could force companies to reformulate products or drop “no added sugar” claims that do not fit the updated definition. Neither proposal, as described so far, redefines “sugars” or addresses sugars metabolized differently, such as allulose and tagatose.
A Practical Checklist
Companies should take the following steps now:
- Take inventory of sugar claims. Identify every product containing allulose, tagatose, lactose, or another sugar that bears a sugar-related claim – on labels, websites, retailer pages, social media, and advertising.
- Review the ingredient list. Check every ingredient against FDA’s definition of “sugars” – “the sum of all free mono- and disaccharides (such as glucose, fructose, lactose, and sucrose).” 21 C.F.R. § 101.9(c)(6)(ii). That includes monosaccharides like glucose, fructose, and galactose (and rare sugars like allulose and tagatose), disaccharides like maltose, sucrose, and lactose, and the sugars contributed by familiar ingredients such as high-fructose corn syrup, barley malt, dextrose, and rice syrup. For any “sugar free” claim, also confirm that every ingredient that is a sugar is marked with an asterisk referring to a statement such as “adds a trivial amount of sugar.” § 101.60(c)(1)(ii).
- Test each claim against its own standard. Measure “sugar free” claims against the 0.5-gram threshold and “no added sugar” claims against § 101.60(c)(2), counting every mono- and disaccharide.
- Don’t treat enforcement discretion as a safe harbor. It means only that FDA has chosen not to act; consumers can still sue.
- Get your own labeling advice. Ingredient suppliers typically disclaim responsibility for how their ingredients are labeled and claimed in your products.
- Build a review cadence. Review all label claims, including nutrient content claims, before launching a new product and at defined intervals thereafter, and set up systems for regular review of regulatory and litigation developments.
- Don’t forget menus and apps. Restaurants and foodservice operators are not exempt: sugar claims in product names on menu boards, websites, mobile apps, and third-party delivery platforms are subject to the same rules, and nutrition information hidden below the fold may not cure them.
- Check the calorie disclaimer. Every “sugar free” claim on a food that is not labeled “low calorie” or “reduced calorie” (and does not bear a relative claim of special dietary usefulness) needs a disclaimer such as “not a low calorie food” each time the claim appears.
Conclusion
Chobani did nearly everything a careful company could do: it followed FDA’s allulose guidance, and FDA approved its labeling in connection with a temporary market permit. It is still defending a class action. That is the lesson of Franco and the suits that followed: FDA nonenforcement is not compliance, and a permit covers only what it addresses. In its November 2025 letter to Bonumose, FDA said it is “actively working towards a regulatory system to address the labeling of sugars metabolized differently than traditional sugars more broadly,” and it has two sugar-related labeling rulemakings in motion. Neither, as described so far, changes what counts as a sugar. Until that happens, the safest assumption is that every mono- and disaccharide counts – whatever the Nutrition Facts Panel may permit.
