1 JULY 2026
2 Welcome back to the Digest, where the docket is full and the coverage is fresher than a DOP-certified San Marzano tomato. This edition serves up a Ninth Circuit reversal breathing new life into malic acid claims, a breakfast drink’s sugar content that couldn’t sweeten the deal with federal preemption, and a One A Day class that’s sticking around for at least one more gummy. On the complaints side, we’ve got protein yogurt in a serving-size squeeze, olive oil blends allegedly pressed for answers, and the Smokehouse Sheriff riding back into town. Pet food takes center stage too—from a thiamine-deficient cat named Whimsey to grain-free dog food facing its own day of reckoning. And for dessert? A decadeold Joint Juice case finally flexes its way to resolution. 32 “Natural” Ingredient Claims 13 Servings per Container 8 Health & Wellness Claims 7 Flavor/Ingredient Claims 6 Foreign Substances 5 Nutrient Content Claims 2 Environmental, Social & Governance Claims 73 Cases Filed in March and April
3 Case Decisions Malic Acid in the Glare of the Ninth Circuit Sun Trammell v. KLN Enterprises Inc., No. 24-6097 (9th Cir. May 15, 2026). The Ninth Circuit has left a bitter taste in one snack purveyor’s mouth by reversing dismissal of a malic acid lawsuit. The plaintiff bought licorice in 2023, and, purportedly suspicious of its claims that it was “Naturally Flavored” and “Free From Artificial Colors & Flavors,” had it independently tested. According to the plaintiff, laboratory results showed the malic acid in the product was the synthetic DL form—not the naturally derived L form. The DL form, in the plaintiff’s view, rendered the labeling representations false. He sued under California’s Consumers Legal Remedies Act (CLRA), as well as for unjust enrichment and breach of express warranty. The Southern District of California had dismissed the lawsuit with prejudice, holding that the complaint did not plead fraud with the particularity Rule 9(b) requires and did not plausibly allege that a reasonable consumer would be deceived. On appeal, however, the Ninth Circuit concluded that the complaint contained sufficient detail about the alleged testing of the products to satisfy Rule 9(b)’s heightened pleading standard. The panel contrasted the plaintiff’s testing allegations from others that were tossed for being too flimsy. On deception, the panel held that disclosure alone was no defense because the back label listed both natural and artificial ingredients but did not say which category the malic acid fell into. Vitamin Gummy Plaintiffs Stick Around Newman v. Bayer Corp., No. 7:22-cv-07087 (S.D.N.Y. May 6, 2026). A certified One A Day gummies class isn’t going anywhere. In a consumer class action filed in late 2022, the plaintiffs allege that One A Day chewable vitamin tablets mislead consumers into thinking they need only take one gummy per day to receive the supposedly promised full nutritional benefit, when the serving size is in fact two or more gummies per day. Following class certification, the defendant moved for partial summary judgment and, alternatively, to decertify the class because absent class members lacked Article III standing without a showing that each purchaser was personally deceived by the challenged label. The court rejected this argument, finding that the plaintiff had created a genuine dispute whether consumers paid a price premium based on the supposed one-a-day promise. The court also refused to decertify the class, ruling that the defendant had not shown a significant intervening event or other compelling reason why Rule 23 was no longer satisfied. At least to this particular court, predominance wasn’t a problem because the case revolved around one allegedly deceptive labeling element on a particular product line. The court applied Second Circuit precedent to ascertainability, requiring only that the class be defined by objective criteria with definite boundaries. For now, the One A Day class gets to keep taking its claims one day—but not one gummy—at a time.
4 Case Decisions No Use Crying over Sugar Content Testori v. Nestlé Health Science US Holdings Inc., No. 1:25-cv-01318 (E.D. Cal. May 11, 2026). A court has dismissed claims that a nutritional drink’s “10g protein” and “21 vitamins + minerals” labeling misled consumers by failing to prominently disclose that the product’s first two ingredients are water and sugar. The plaintiff alleged the defendant’s marketing of Carnation Breakfast Essentials as a “nutritional drink” created a misleading impression that the product was a balanced, healthful breakfast option, when in fact it contained 11 grams of added sugar per serving. The court granted the motion to dismiss on two grounds. First, the court found the plaintiff’s state-law claims preempted by federal law, following the Ninth Circuit’s lead to conclude that these allegations about allegedly misleading sugar content effectively impose labeling requirements not identical to federal standards. Second, even setting preemption aside, the court held that the plaintiff failed to plausibly allege consumer deception. Applying the“reasonable consumer”test, the court reasoned that the front label—which listed specific nutrients like protein and vitamins—was not “unambiguously deceptive,” and any ambiguity about sugar content was resolved by the Nutrition Facts panel on the back. The court dismissed all claims with prejudice, finding amendment would be futile. The plaintiff’s sugar-based theory, it seems, was just not sweet enough to last.
5 New Complaints Keto Consumers Question Calorie Count Salley v. Royo Bread Co. Inc., No. 1:26-cv-03220 (E.D.N.Y. May 28, 2026). A keto-friendly bakery brand is facing a class action challenging its low-calorie claims. According to the complaint, the numbers on the brand’s breads, bagels, and buns simply do not square with the products’ own Nutrition Facts panels. Applying the conventional Atwater formula— carbohydrates and protein contribute four calories per gram, fat contributes nine—the plaintiffs contend that many products contain substantially more calories than advertised. The complaint frames this as “health-washing,” marketing products as healthier, lower-calorie alternatives to traditional breads while charging a premium for those purported benefits. The plaintiffs seek to represent a nationwide class with state subclasses in California, Illinois, New York, New Jersey, Montana, and Connecticut, asserting a variety of state consumer-protection, false-advertising, and unjustenrichment claims. Whether the complaint ultimately rises (or dare we say “leavens”) may depend on a key issue lurking beneath the crust: The plaintiff’s theory assumes all declared carbohydrates contribute four calories per gram, despite the products’ substantial fiber content, which might reduce the amount of available carbohydrates the body can digest. We’ll be watching to see if this one has enough dough to survive. A Pickle-Flavored Fried Cucumber Brine Bethea v. Fresh Gourmet Company LLC, No. 716248/2026 (N.Y. Sup. Ct. May 30, 2026). In this class action, the plaintiffs allege that the defendant’s “Pickle-Flavored Fried Cucumbers” are misbranded because the product name fails to disclose that the pickle flavor comes in part from malic acid, which the complaint characterizes as a synthetic ingredient. The theory, brought to you by the one and only Spencer Sheehan: Consumers paid a premium after being (mis)led to believe the product’s pickle punch came entirely from natural flavor sources like dill and vinegar. The plaintiff seeks damages for the alleged price premium and asserts claims under Sections 349 and 350 of the New York General Business Law. Oh Sweet Stroopwaffel o’ Mine Brown v. Rip Van Inc., No. 7:26-cv-05130 (S.D.N.Y. June 17, 2026). A class action in the Southern District of New York alleges that a stroopwafel maker’s sugar claims aren’t quite as sweet as they appear. The plaintiff targets Rip Van Wafels and Rip Van Mini Wafels, which prominently tout “3g sugar” and “1g sugar,” respectively, on their front labels. But according to the complaint, the products also contain vegetable glycerin—a sugar alcohol that functions as a sweetener—buried among the back-label ingredients but never declared in the Nutrition Facts panel as FDA regulations require. The plaintiffs contend this omission renders the sugar claims false and misleading—reasonable consumers, the complaint argues, are not expected to comb through fine-print ingredient lists to correct a clear front-label representation. The complaint also claims misbranding under federal law and California’s Sherman Law for the same reason. The plaintiff seeks to represent a nationwide class with California and New York subclasses, bringing claims under New York’s General Business Law and California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act, as well as breach of express warranty and unjust enrichment.
6 New Complaints The Smokehouse Sheriff Is Back in Town Rugg v. Bumble Bee Foods LLC, Index No. EF006490-2026 (N.Y. Sup. Ct. June 20, 2026). *Cue sound of whipcrack* Where there’s smoke on a label, the Smokehouse Sheriff is looking for fire. Spencer Sheehan— our most prolific recurring character—has brought another smoke-flavor case, this time lassoing a canned tuna labeled “Hickory Smoke Flavor.” The complaint follows a dusty cattle trail we know all too well: the plaintiff alleges the product was misbranded by failing to disclose the source of its smoke flavor and by suggesting the tuna’s taste came from traditional smoking over burning wood, sawdust, or similar material. In reality, the label reveals the flavor comes from added “Smoke Flavors”—ingredients akin to “liquid smoke” that the plaintiff contends are materially different from actual combustion-generated smoke. The plaintiff alleges that, had she known the source of the smoky flavor, she would not have purchased the product or would have paid less for it. She brings claims under New York’s consumer protection laws and seeks to represent a class of New York purchasers. Yogurt’s Serving-Size Squeeze Danone US LLC v. Chobani LLC, No. 1:26-cv-05037 (S.D.N.Y. June 15, 2026). Knox v. Chobani LLC, No. 1:26-cv-05093 (S.D.N.Y. June 16, 2026). In a one-two punch, a leading yogurt maker is facing both a competitor challenge and a consumer class action over its 20G Protein yogurt line. At the heart of both cases is a tablespoon’s worth of serving-size math. The complaints allege that FDA regulations require yogurt serving sizes to be based on a 170-gram reference amount customarily consumed (RACC), which translates to a declared serving size of 2/3 cup after applying FDA rounding rules. Instead, the defendant declares its serving size as 3/4 cup—allowing it to claim 20 grams of protein per serving in the Nutrition Facts panel. According to the plaintiffs, applying an uninflated serving size would yield only 18 grams of protein per serving, rendering the “20G Protein” claim misleading. The competitor challenge was filed first, asserting unfair competition claims, while the consumer suit largely copies verbatim the core allegations in the first-filed complaint but brings claims under New York consumer protection laws. Two grams of protein may not sound like much—but in the yogurt aisle, it’s apparently worth a fight. Extra Virgin? Plaintiffs Claim Extra Fiction Hallak v. Karabetian Import & Distribution Inc. No. 3:26-cv-03269 (S.D. Cal. May 28, 2026). Hallak v. Overseas Food Distribution LLC, No. 3:26-cv-03268 (S.D. Cal. May 28, 2026). An enterprising plaintiff is pressing two olive oil producers in a pair of class actions filed on the same day in the Southern District of California. The complaints allege that two olive oil blends are mislabeled because—according to alleged laboratory testing—they contain no olive oil whatsoever. Instead, the complaints allege that both products contain only canola oil, or a combination of canola and soybean oil. The plaintiff contends the defendants engaged in a mislabeling scheme to capitalize on consumer demand for the health benefits associated with olive oil. The plaintiff seeks to represent nationwide classes and California subclasses, bringing claims for violations of California’s Health & Safety Code, False Advertising Law, and Unfair Competition Law; fraud and deceit; breach of implied warranty of merchantability; and unjust enrichment.
7 New Complaints “Nothing Artificial” Claim Fails to Satisfy, Says Plaintiff Kellas v. Cooper Street Cookies LLC, No. 617886/2026 (N.Y. Sup. Ct. June 26, 2026). A New York consumer is trying to give his sweet tooth a bite in a lawsuit that targets the “Nothing Artificial” representation on the packaging of Twice Baked Cookies. The plaintiff’s hunt through the ingredient list led him to scrutinize what was lurking in the leavening, contending that the representation is false because the ingredient list includes sodium acid pyrophosphate—a subingredient of the baking powder used in the products. According to the plaintiff, that subingredient is an inorganic phosphate derived from synthetic materials. The plaintiff insists he is not alone in thinking that sodium acid pyrophosphate is not natural, citing a mysterious FDA “warning letter” issued to an unnamed baker selling pancakes as “all natural.” Who could argue with that? The complaint asserts a single cause of action under New York General Business Law Sections 349 and 350 on behalf of a proposed class of New York consumers. We’ll be watching to see how this one crumbles. A Supplement to the Docket Heath v. Natals Inc., No. 3:26-cv-05251 (N.D. Cal. Jun. 2, 2026). A class action filed against a dietary supplement manufacturer alleges that the company falsely markets its “Essential” multivitamins as providing necessary daily nutrition. By the plaintiffs’telling, the multivitamins are essential in name only because they allegedly lack at least seven of the 13 vitamins that the FDA and NIH recognize as essential for human health. The plaintiffs contend that reasonable consumers would understand the term “Essential” to mean the supplements contain all essential vitamins, and that the products’ labeling and advertising are misleading because they do not clearly disclose the absence of several essential nutrients. The plaintiffs bring claims on behalf of California, New York, and nationwide classes of consumers for violations of California’s Unfair Competition Law, Consumers Legal Remedies Act, and False Advertising Law; New York General Business Law Sections 349 and 350; breach of express warranty; and unjust enrichment. Gummy Math Alleged to Not Add Up Barron v. Target Corp., No. 033208/2026 (N.Y. Sup. Ct. May 3, 2026). Here’s a probiotic puzzle: If a bottle says “80 Gummies” and “500 Million Live Cells Per Serving,” how many live cells are you getting per gummy? The answer is only half what the plaintiff thought. The complaint alleges that a major retailer’s Up&Up probiotic gummies mislead consumers because the label prominently declares “80 Gummies” and “80 Count” alongside the potency claim—but the “small print” on a “non-visible” side of the label discloses that the strength is based on two-gummy servings, meaning the bottle actually contains only 40 servings. The plaintiff alleges consumers paid a premium based on these allegedly misleading quantity and potency representations. The complaint asserts claims under New York’s General Business Law. As readers of the Digest know, this is just one of the many lawsuits of late gumming up courthouse dockets (like this one, and this), and the pace is showing no signs of slowing down.
8 New Complaints Tomato, Tomahto; San Marzano, Sans Marzano? Andrich v. Cento Fine Foods Inc., No. 3:26-cv-04012 (N.D. Cal. May 4, 2026). A plaintiff is peeling back the label on one of America’s most recognizable canned tomato brands—and alleging what’s underneath is not what it seems. This class action claims the defendant sells “San Marzano Certified Peeled Tomatoes” as authentic protected designation of origin (DOP) certified products despite receiving certification from an “independent third-party” certifier, rather than the San Marzano Consortium that certifies San Marzano tomatoes. The plaintiff asserts claims under California’s Unfair Competition Law and Consumers Legal Remedies Act, contending the defendant’s not-so-secret sauce is deceptively marketed. Our regulars know that the plaintiff’s lawsuit borrows from an old menu. Multiple other plaintiffs have ladled from the same defendant’s saucepot, with mixed reviews. While one plaintiff survived a motion to dismiss in the Northern District of California, another was tossed from the trattoria in the Southern District of New York, with the court reasoning that reasonable consumers would not be deceived without any representation that the defendant’s tomatoes were certified by the Consortium. Let’s see whether the plaintiff here will enjoy any greater luck with this copycat recipe. Plaintiff Calls Protein Claims Whey Off the Mark Ruchmavn v. Ryse Up Sports Nutrition LLC, No. 2:26-cv-05434 (C.D. Cal. May 21, 2026). Ruchman v. DAS Labs LLC, dba Bucked Up, No. 2:26-cv-05871 (C.D. Cal. Jun. 1, 2026). Just how much protein is in that protein beverage? According to one busy beaver of a plaintiff, not nearly enough. The plaintiff filed lawsuits against two beverage manufacturers, alleging that both companies overstate the protein content of their whey isolate protein beverages. According to the complaints, independent laboratory testing (that old chestnut!) revealed materially lower protein content than the amount declared on the products’ labels, leaving consumers with less muscle-building power than advertised. The complaints allege that the plaintiff relied on the protein content claims when buying the products. The plaintiff is seeking class certification on behalf of California consumers for actual, general, or compensatory damages, restitution or disgorgement, injunctive relief, and reasonable attorneys’ fees, costs, and interest. Whimsey’s Quest for Thiamine Free v. Go Raw LLC, No. 3:26-cv-03704 (S.D. Cal. June 24, 2026). One plaintiff is on the hunt—and the prey is a “Prey Model” diet, marketed as part of the raw cat food Quest product line. According to the complaint, the defendant markets its products as “complete and balanced,” despite containing virtually no thiamine (Vitamin B1), allegedly as determined by FDA testing. The plaintiff’s cat, Whimsey, allegedly ate Quest White Fish formula and developed acute ataxia, seizure-like episodes, and dilated pupils, landing her in emergency veterinary
9 New Complaints care with a confirmed thiamine deficiency diagnosis. The complaint asserts nine causes of action—one for each life, perhaps?—including strict products liability, failure to warn, breach of express and implied warranty, fraud, and violations of California’s False Advertising Law and Unfair Competition Law, seeking class certification, compensatory and punitive damages, disgorgement, and injunctive relief. Going Against the Grain West v. Costco Wholesale Corp., No. 2:26-cv-02182 (W.D. Wash. June 23, 2026). Eilender v. Champion Petfoods USA Inc., No. 1:26-cv-04103 (S.D.N.Y. May 17, 2026). Zabnicki v. Champion Petfoods USA Inc., No. 1:26-cv-02899 (D. Colo. June 28, 2026). Three class actions are barking up the same tree, alleging that major pet food brands deceptively marketed grain-free dog food as a healthier, nutritionally superior alternative without disclosing potential health risks (e.g., dilated cardiomyopathy) and nutritional deficiencies (e.g., insufficient taurine). All three complaints cite public articles purportedly showing that “grain-free” diets are not nutritionally equivalent to traditional diets and may be associated with negative health effects. The plaintiffs contend that consumers paid a premium, believing the products provided superior nutrition for their dogs. Together, these lawsuits suggest that pet food may be susceptible to heightened scrutiny of health and nutrition content claims—especially when plaintiffs allege those claims are not substantiated by available scientific evidence. The complaints bring claims under state false advertising, warranty, and consumer protection laws, as well as various common-law theories. If you’re in the pet food aisle, readers, take note: Grain-free may be the new litigation frontier.
10 Case Settlements Juicy Settlement Gives Plaintiffs Plenty to Drink In Montera v. Premier Nutrition Corp., No. 3:16-cv-06980 (N.D. Cal. May 14, 2026). After a decade of litigation, a class action challenging health benefit claims on Joint Juice products has finally squeezed its last drop. The plaintiffs alleged that the defendant’s marketing of a glucosamine-and-chondroitin formula as beneficial to joint health and comfort was false and misleading because numerous medical studies found those ingredients did not, in fact, improve joint health. In other words, the plaintiffs contended the product’s joint health promises didn’t have a leg to stand on. A 2022 jury trial delivered the plaintiffs a verdict of more than $8 million, but the lawsuit still had some miles to run. After multiple appeals, extensive discovery, and several mediations, the parties finally resolved the matter for a total recovery exceeding $19 million—including the jury verdict, post-judgment interest, and previously ordered attorneys’ fees and expenses. That’s quite the payout for a product that allegedly couldn’t deliver on its joint promises. Flexibility, it seems, eventually won out.
11 Petits Fours Publications & Media Kristi Boswell, Matthew Pezzella, and Elza Black wrote the advisory “USDA Proposes Expanded Reporting Rules for Foreign Investment in U.S. Agricultural Land.” (July 13, 2026) Kristi Boswell, Matthew Pezzella, and Elza Black wrote the advisory “House Committee on Agriculture Introduces Bill to Modernize and Expand the H-2A Program.” (July 1, 2026) Greg Berlin wrote the advisory “Surge in Proposition 65 Notices of Violation Targets Food Industry over Aflatoxins.” (June 5, 2026)
12 Contributing Authors Amanda Newton Wellen +1 404 881 4809 amanda.wellen@alston.com Nicole Yapp +1 202 239 3056 nicole.yapp@alston.com Ashley Yull +1 202 239 3289 ashley.yull@alston.com Asher Quesenberry +1 202 239 3289 asher.quesenberry@alston.com Annie Sher +1 212 905 9082 annie.sher@alston.com Samuel Jockel +1 202 239 3037 sam.jockel@alston.com Rachel Lowe +1 213 576 2519 rachel.lowe@alston.com Andrew Phillips +1 404 881 7183 andrew.phillips@alston.com Angela Spivey +1 404 881 7857 angela.spivey@alston.com Alan Pryor +1 404 881 7852 alan.pryor@alston.com Karly Bader +1 212 905 9031 karly.bader@alston.com Mary Chandler Beam +1 212 905 9074 mary.chandler.beam@alston.com Troy Stram +1 404 881 7256 troy.stram@alston.com Samantha Burdick +1 213 576 1190 sam.burdick@alston.com Ryan D’Souza +1 202 239 3260 ryan.dsouza@alston.com Jamie George +1 404 881 4951 jamie.george@alston.com Jonathan Hermann +1 404 881 7275 jon.hermann@alston.com Robert Hawes +1 202 239 3015 robert.hawes@alston.com Benjamin James +1 202 239 3482 benjamin.james@alston.com Carolyn Egervary +1 212 905 9365 carolyn.egervary@alston.com Esmat Hanano +1 404 881 7742 esmat.hanano@alston.com Atlanta | Brussels | Century City | Charlotte | Chicago | Dallas | London | Los Angeles | New York | Raleigh | San Francisco | Silicon Valley | Washington, D.C.
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