1 SEPTEMBER 2026 Regulatory Whiplash over Allulose...............................................................................................................................3 Protein Claims Fall Flat................................................................................................................................................4 Not Berry Sustainable, Cries Plaintiff...........................................................................................................................5 Breakfast Foods Accused of Protein Halo.....................................................................................................................5 Some Like It Hot (Sauce).............................................................................................................................................5 Citric Acid Reprise in the Bakery..................................................................................................................................6 Quinoa Accused of Lacking Main Character Energy......................................................................................................6 Digestibility Déjà Vu.....................................................................................................................................................6 Still Mining for Heavy Metals........................................................................................................................................6 Several More Servings of Supplement Serving Size Suits..............................................................................................7 Fishing for Standing.....................................................................................................................................................7 More Cracked Wheat Claims from the Plaintiff Mill.......................................................................................................7 A Sustainable Source of Litigation?..............................................................................................................................8 Smoothies in the Sugar Spotlight.................................................................................................................................8 Preservatives Still the Apple of the Plaintiffs’ Bar’s Eye................................................................................................8 Plaintiffs Call Claims (Co)Q(10)uestionable..................................................................................................................8 Mind the (Nutritional) Gaps.........................................................................................................................................9 A Familiar Formula of Piggy-Backed Allegations...........................................................................................................9 Milk It for All It’s Worth................................................................................................................................................9 Seeking Certification over Alleged Miscertification.......................................................................................................9 “No Artificial” Claims Dip into, Well, Dips...................................................................................................................10 Petits Fours...............................................................................................................................................................11
2 We’re back with a full docket, covering legal theories multiplying faster than allulose lawsuits. Protein claims are having a moment: plaintiffs are stacking theories like scoops of whey, from “health halo” allegations against protein-branded cereals and granolas to PDCAAS disclosure disputes over plantbased snacks to heavy-metal contamination claims targeting protein powders marketed as “clean.” Elsewhere, sustainability marketing faces fresh scrutiny across a range of products. And to spice things up, hot sauce gets hauled into court over an alleged recipe change, while cracked wheat bread products can’t seem to evade the litigation spotlight. Grab your reading glasses and your favorite snack— preferably one with an accurate Nutrition Facts Panel—and dig in. 38 Flavor/Ingredient Claims 25 “Natural” Ingredient Claims 8 Servings per Container 6 Foreign Substances 6 Nutrient Content Claims 5 Health & Wellness Claims 3 Environmental, Social & Governance Claims 91 Cases Filed in March and April
3 Appeals Regulatory Whiplash over Allulose Franco v. Chobani LLC, No. 25-2087 (7th Cir. July 27, 2026). The Seventh Circuit reversed the dismissal of consumer claims challenging “Zero Sugar” yogurt labels—holding that allulose is, in fact, a sugar under federal regulations. The case centered on a yogurt company’s “Zero Sugar” yogurt, which contained 4 grams per serving of allulose, a naturally occurring monosaccharide sweetener. The plaintiffs sued under dozens of state consumer protection laws, alleging deceptive marketing. The district court dismissed, deferring to FDA guidance and finding state-law claims preempted. The Seventh Circuit—and the FDA, which filed an amicus brief—saw things quite differently. The legal question was straightforward: Does allulose count as a sugar? Federal regulations define “Total Sugars” as “the sum of all free mono- and disaccharides.” Because allulose is a monosaccharide, the court held it falls squarely within what it viewed as an unambiguous regulatory definition. But here’s where things get interesting. The FDA had previously issued guidance announcing it wouldn’t enforce sugar-labeling requirements against allulose—often referred to as enforcement discretion—because it does not behave in the body like other sugars, from cavities to calories. To the industry’s surprise, however, the FDA filed an amicus brief confirming that, yes, allulose is a sugar under the regulation. In other words, the agency told the industry, “we won’t come after you,” then showed up in court to say, “but that doesn’t mean they can’t.” The about-face was not lost on the Seventh Circuit—or on defendants who thought they had regulatory cover. With preemption off the table, the court turned to consumer deception, finding that the plaintiffs had stated a claim under various state laws. How reasonable consumers perceive “sugar free” labels, the court reasoned, is a factual question that can’t be resolved on a motion to dismiss. The court also rejected the argument that reliance on FDA guidance provided a safe harbor, noting that a“sophisticated actor” should have known that the agency’s enforcement discretion wouldn’t stop private suits. Plaintiffs took notice, and the litigation floodgates have opened. Dozens of lawsuits followed in the decision’s wake, targeting products across the food industry with similar “zero sugar” representations that contain allulose.
4 Case Decisions Protein Claims Fall Flat Kha v. Tilray Brands Inc., No. 2:25-cv-10630 (C.D. Cal. July 17, 2026). A protein-powder lawsuit hit a wall in the Central District of California, where the court granted a hemp-products company’s motion to dismiss. Readers who have been following along will recognize this theory: The plaintiff alleged that online product listings for hemp protein powder, hemp hearts, and flaxseeds violated FDA labeling requirements because they touted protein content allegedly without disclosing the PDCAAS-corrected percent daily value. As we’ve covered many times before (and as we continue to cover below), FDA regulations require the percent daily value—calculated using the Protein Digestibility Corrected Amino Acid Score—to appear on the Nutrition Facts Panel (NFP) when a protein claim appears elsewhere on the labeling. The plaintiff contended the listings’ protein claims were misleading, not because of a missing PDCAAS-corrected percent daily value, but because consumers would have to scroll past the title and main product image to find the corrected information, rendering it allegedly “buried” in a secondary carousel image. As a threshold matter, the court found that the product listings can constitute “labeling” under the Federal Food, Drug, and Cosmetic Act when, as here, the written and graphic content “supplements and explains” the product. The court also concluded that the plaintiff plausibly alleged the defendant created and controlled the listings through its Amazon Brand Store and active engagement with customer questions. But that’s where the plaintiff’s luck ran out. Looking at the images attached to the complaint itself, the court found the NFP—complete with the required percent daily value— was not buried at all. It was readily visible in the front-page carousel, “immediately adjacent to the listing.” The court noted that consumers “know to look for the ‘familiar and ubiquitous’ NFP for nutritional information,” and the plaintiff herself admitted she regularly checks the NFP before purchasing protein supplements. The complaint was dismissed with leave to amend within 21 days—an invitation the plaintiff declined. For defendants facing similar PDCAAS-based claims, this decision offers a helpful reminder: If the information is where reasonable consumers know they should look, plaintiffs may find themselves with a case that cannot sprout.
5 New Complaints Not Berry Sustainable, Cries Plaintiff Washington v. Driscoll’s Inc., No. 26CV02011 (Cal. Super. Ct. June 18, 2026). A class action suggests the greenwashing tide is still rolling in—and it’s bringing allegations of chemical contamination. A California consumer alleges that a large berry company cultivated a premium, sustainability-forward brand identity while its strawberries allegedly harbored residues of different pesticides and PFAS compounds according to (the ever-popular refrain) “independent testing.” But the plaintiff does not allege that her purchase was actually contaminated, demonstrating how plaintiffs continue attempting to monetize alleged contamination even in the absence of an injury. The complaint zeroes in on the Green Guides’ prohibition on unqualified general environmental benefit claims and argues that the company’s sustainability messaging, paired with undisclosed alleged contamination, is the kind of environmental marketing the Green Guides were designed to address. The complaint asserts claims under California’s Unfair Competition Law (UCL), False Advertising Law (FAL), Environmental Marketing Claims Act, and Consumers Legal Remedies Act (CLRA). Breakfast Foods Accused of Protein Halo Thomas v. General Mills Inc., No. 26STCV21293 (Cal. Super. Ct. July 6, 2026). Shorley v. Whole Foods Market California Inc., No. 26STCV21913 (Cal. Super. Ct. July 13, 2026). When the biggest word on a cereal box is “protein,” would you expect it to deliver more sugar per serving than protein? Despite the absence of a representation about sugar, that’s what two supposedly protein-to-sugar-ratio-conscious plaintiffs have alleged. Two California consumers have filed suit in state court alleging that a major cereal brand and a national grocery chain deceptively market their protein-branded breakfast products. One complaint takes aim at a protein cereal’s “PROTEIN 8G PER SERVING” claims, which the plaintiff contends create what’s become a familiar refrain in food litigation: a “health halo” that allegedly obscures the 11-ish grams of added sugar in each serving. The other targets a “Protein & Fiber Crunch” granola, alleging that sugar is the predominant ingredient despite the protein- and fiberfocused labeling. (But“Hm,”you might wonder,“Is the protein claim accurate?” “Who cares!” and “Not the point!” says the plaintiffs’ bar.) Both plaintiffs assert claims under California’s CLRA, FAL, and UCL and seek class certification, damages, restitution, injunctive and declaratory relief, attorneys’ fees, costs, and a jury trial. Some Like It Hot (Sauce) Wright v. McCormick & Co. Inc., No. 1:26-cv-04870 (E.D.N.Y. Aug. 10, 2026). Huerta v. McCormick & Co. Inc., No. 1:26-cv-09817 (N.D. Ill. Aug. 14, 2026). Two class actions filed just days apart allege that America’s beloved hot sauce got a recipe makeover without sufficiently advising consumers of the change (in a world of constantly shifting supply chains, how dare they!). The complaints contend that after a spice conglomerate acquired the Cholula brand, it quietly swapped traditional ingredients for different alternatives while keeping the iconic packaging and the word “Original” front and center. How do they know that? The reformulation was disclosed on the ingredient list of course. Wright asserts New York General Business Law (GBL) claims, while Huerta brings Illinois and multistate consumer claims plus unjust enrichment. Bait and switch, or just a failure to read? We think the latter, but we’ll see if the courts agree.
6 New Complaints Citric Acid Reprise in the Bakery Szabla v. Bimbo Bakeries USA Inc., No. 1:26-cv-10217 (N.D. Ill. Aug. 24, 2026). We’ll spare you coverage of the dozen-plus new citric acid class actions (what else is new?) and cover just this one, which challenges a bakery’s claim on several bread products that they contain “no artificial preservatives or flavors.” Longtime readers will recognize this theory from the unrelenting wave of citric acid lawsuits we’ve covered over the years. According to the complaint, the products contain artificially manufactured citric acid produced through fermentation of black mold, not the naturally derived variety a reasonable consumer might have in mind. The complaint further alleges this ingredient can cause inflammation, allergic reactions, and other health complications. The complaint also alleges that some products tested positive for glyphosate, a pesticide that plaintiffs associate with adverse cardiovascular effects and certain cancer risks. Between the mold-derived preservatives and the pesticide allegations, the plaintiff clearly believes there’s more in the bread than meets the rye. Quinoa Accused of Lacking Main Character Energy Merrick v. Mars Foods US LLC, No. 3:26-cv-04610 (S.D. Cal. Aug. 12, 2026). Asking for a friend—is it pronounced “Quee-Noah” or “KeenWah”? Either way, a California class action challenges a quinoa-forward grain blend for allegedly containing far less quinoa than the name implies. The plaintiff alleges that placing “quinoa” first in the product name led him to believe quinoa was a main ingredient, although the ingredient list allegedly shows it made up less than 2% of the blend—a case of quinoa in name only, if the allegations hold. The plaintiff contends he paid a premium because quinoa is more expensive and healthier than other grains. The complaint asserts California UCL, FAL, CLRA, unjust-enrichment, and negligent-misrepresentation claims. Digestibility Déjà Vu Ting v. The Only Bean LLC, No. 3:26-cv-06732 (N.D. Cal. July 1, 2026). Who’s tired of PDCAAS cases? Not plaintiffs. A new class action alleges that a snack company overstated the protein content of its roasted edamame products. The plaintiff claims that the products were marketed as a “High Protein Supersnack” containing “11G Protein.” But not all protein is the same. According to the plaintiff, 11 grams of edamamederived protein is not as digestible as 11 grams of, say, whey protein isolate, resulting in a lower Protein Digestibility Corrected Amino Acid Score (a phrase that, thanks to the persistence of these lawsuits, we at For Your Consumption can now say in our sleep). Yet the plaintiff alleges that the regulatorily required PDCAAS-corrected percent daily value on the nutrition facts panel was not in fact PDCAAScorrected, creating the allegedly false impression that all 11 grams of protein per serving were fully digestible. The lawsuit asserts that the products violate FDA regulations, the California Sherman Food, Drug, and Cosmetic Law, and California’s other consumer protection laws, seeking damages and injunctive relief. Still Mining for Heavy Metals Cada v. Amazon.com Inc., No. 2:26-cv-02704 (W.D. Wash. July 31, 2026). Barton v. Costco Wholesale Corp., No. 2:26-cv-02364 (W.D. Wash. July 7, 2026). Two Western District of Washington class actions allege that organic protein powders marketed with slogans like “Cleaner Ingredients,” “Higher Standards,” and “Good, Clean
7 New Complaints Nutrition” contained lead, cadmium, and arsenic. As we’ve previously reported, heavy metals in protein powders continue to be a popular target for the plaintiffs’ bar. Once again, these lawsuits take aim at major retailers selling the plant-based protein products, rather than the manufacturers. The complaints allege the defendants knew or should have known the products contained detectable heavy metals while marketing them as “healthy” options. Both suits assert Washington Consumer Protection Act, warranty, unjust-enrichment, negligent-misrepresentation, and fraudulent-concealment claims and seek nationwide classes with Washington subclasses. Several More Servings of Supplement Serving Size Suits Barrera v. Hilma Inc., No. 623784/2026 (N.Y. Sup. Ct. Aug. 17, 2026). Chiaravalloti v. Topco Associates LLC, No. 623933/2026 (N.Y. Sup. Ct. Aug. 18, 2026). Like the number of articles about these lawsuits we serve up in each For Your Consumption edition, two complaints allege that consumers need multiple gummies or tablets per serving, contrary to their professed expectations. The plaintiffs contend that reasonable consumers may understand that the stated amounts apply to each gummy or tablet, though the serving sizes are three gummies and two tablets, respectively. That’s a lot of chewing (and swallowing) to reach the promised nutritional payoff, or so they say. The complaints allege the front labels fail to disclose the number of units per serving or servings per container and bring claims under New York’s General Business Law and Agriculture and Markets Law. Although not formally pleaded as class actions, the complaints include future contemplated class allegations. Fishing for Standing Moore v. Wild Planet Foods Inc., No. 4:26-cv-08569 (N.D. Cal. Aug. 18, 2026). A California plaintiff alleges that a natural foods company’s canned sardines—marketed as a “Nutritional Powerhouse” and “Wildly Good for You”—contain something the label doesn’t mention: arsenic, according to third-party testing. Like so many of these contaminants cases involving socalled “independent testing,” the plaintiff does not allege any product he purchased was contaminated, and he does not otherwise allege becoming ill or injured by consuming the products, likely bringing the question of Article III standing front and center. The plaintiff asserts California consumerprotection and false-advertising claims, warranty claims, and unjust enrichment. Time will tell whether these claims have legs—or fins—to stand on. More Cracked Wheat Claims from the Plaintiff Mill Fetzer v. The Essential Baking Co. Inc., No. 618942/2026 (N.Y. Sup. Ct. July 7, 2026). Pellegrino v. Trader Joe’s Co., No. 67643/2026 (N.Y. Sup. Ct. July 4, 2026). Whelan v. Heidelberg Group Inc., No. 2026-53557 (N.Y. Sup. Ct. July 2, 2026). Three nearly identical New York complaints—which are themselves from the same Spencer Sheeham mill as lawsuits we’ve previously covered—allege that bread marketed as “Cracked Wheat” is primarily made from enriched wheat flour, with cracked wheat appearing much further down the ingredient list. The plaintiffs contend the labeling lets manufacturers charge a premium for products containing only de minimis or negligible cracked wheat—leaving consumers who thought they were getting whole-grain goodness with, well, mostly wheat flour (the un-cracked
8 New Complaints variety). The complaints assert claims under New York GBL Sections 349 and 350 on behalf of proposed New York classes. These cases are freshly out of the oven, so we’ll be watching to see how they fare in court. A Sustainable Source of Litigation? Rogow v. Amazon.com Inc., No. 2:26-cv-02702 (W.D. Wash. July 31, 2026). Harris v. Trapananda Seafarms LLC, No. 1:26-cv-10335 (N.D. Ill. Aug. 27, 2026). Rogow challenges “Certified Sustainable” and “responsibly sourced”seafood labels at a major grocery chain, while Harris challenges frozen salmon marketed as “Sustainably FarmRaised.” As For Your Consumption readers know from previous coverage, sustainability-labeling claims in the seafood space have drawn repeated scrutiny. The complaints allege environmental and sourcing practices inconsistent with those statements. Rogow asserts Washington consumer, warranty, and unjustenrichment claims. Harris asserts fraud and negligentmisrepresentation claims under Illinois and parallel multistate statutes, seeking damages, restitution, and corrective advertising. We’ll continue to monitor these cases to see if they can sustain their label. Smoothies in the Sugar Spotlight Otero v. TSC Franchisor LLC, No. 7:26-cv-07287 (S.D.N.Y. Aug. 26, 2026). The plaintiff alleges that a national smoothie chain’s healthand-wellness marketing is misleading because its smoothies contain added sugar that plaintiffs associate with chronic health risks. The complaint further alleges the chain’s digital ordering platform keeps sugar content under wraps because the nutrition guide is allegedly buried, unclear, and not readily accessible during the normal purchasing process. The plaintiff seeks to represent a nationwide class and a New York subclass and asserts claims for violation of New York consumer protection laws, breach of express warranty, and unjust enrichment. We’ll be watching to see whether these claims blend into something substantial or pulverized on the pleadings. Preservatives Still the Apple of the Plaintiffs’ Bar’s Eye Robinson v. The Stop & Shop Supermarket Co. LLC, No. 67520/2026 (N.Y. Sup. Ct. July 1, 2026). The plaintiff alleges that a grocery chain’s “100% Pure Apple Juice” is neither 100% pure nor entirely apple juice because it contains synthetic ascorbic acid. The complaint alleges commercial ascorbic acid is manufactured through industrial chemical processes and functions as a preservative and added vitamin C. The plaintiff asserts New York GBL Sections 349 and 350 claims and seeks damages based on an alleged price premium. We’ll be watching to see if the court gets to the core of this dispute. Plaintiffs Call Claims (Co)Q(10)uestionable Hoffman v. Kunzhong Zhang, No. BER-L-008200-26 (N.J. Super. Ct. Aug. 28, 2026). A New Jersey plaintiff alleges a supplement was advertised as containing CoQ10—a natural antioxidant—but in fact contained none, according to independent laboratory analysis. If the testing holds up, that’s a rather significant omission for a supplement whose entire raison d’être is CoQ10. The complaint asserts New Jersey Consumer Fraud Act and common-law fraud claims against the companies allegedly responsible for making and marketing the supplement.
9 New Complaints Mind the (Nutritional) Gaps Scott v. Gruns Nutrition Inc., No. 2:26-cv-08019 (C.D. Cal. July 22, 2026). A California plaintiff has filed a class action challenging nutritional claims for a line of “Superfoods Greens Gummies.” The complaint alleges that independent testing showed the products contain less dietary fiber and niacin than declared on the label, despite marketing claims that the gummies provide “comprehensive daily nutrition” and help consumers “fill the gaps” in their nutrition. The plaintiffs say that the only gaps are in the labeling. The complaint separately challenges the product’s “Core Nutrients Blend” declaration outside the supplement facts panel, which is allegedly inconsistent with FDA labeling requirements. According to the plaintiff, these labeling inconsistencies result in consumer confusion about the composition and quantitative disclosure of the blend. The complaint asserts claims under California consumer protection laws and seeks damages, restitution, and injunctive relief. A Familiar Formula of Piggy-Backed Allegations Nam v. Nara Organics Inc., No. 3:26-cv-05825 (W.D. Wash. July 23, 2026). Nelson v. Nara Organics Inc., No. 1:26-cv-06850 (S.D.N.Y. Aug. 11, 2026). An organic infant formula brand faces two suits arising from a recall of its Whole Milk Organic Powdered Infant Formula due to possible C. botulinum contamination. The Washington action is primarily a personal-injury suit on behalf of an infant allegedly hospitalized after consuming the formula and also challenges alleged suggestions of FDA approval or heightened clearance. The New York action seeks state and nationwide consumer classes based on an alleged failure to disclose that the formula contained, or was at risk of containing, C. botulinum. It asserts New York consumer-protection, negligence, unjustenrichment, and implied-warranty claims. We’ll be keeping a close eye on these cases as they develop. Milk It for All It’s Worth Carpio v. Santini Foods Inc., No. TCN-898840 (Cal. Super. Ct. Aug. 7, 2026). A New York resident has brought suit in California, alleging that the defendant’s sweetened condensed milk contained potassium sorbate, contrary to his expectations. According to the complaint, the standard of identity for sweetened condensed milk does not permit potassium sorbate, rendering the product mislabeled. The plaintiff asserts claims for fraud and New York consumer protection law violations on behalf of a nationwide class and a New York subclass. Seeking Certification over Alleged Miscertification Legrier v. Topco Associates LLC, No. EF009001-2026 (N.Y. Sup. Ct. Aug. 12, 2026). A New York plaintiff seeks to represent a class of consumers challenging elderberry gummy vitamins bearing an “RSPO” seal that describes palm oil as “Mixed” and “Certified Sustainable.” As we’ve noted before, third-party certification claims—from “climate neutral” and “Coffee and Farmer Equity” to “certified natural” and “non-GMO”—remain popular targets for the plaintiffs’ bar. The complaint alleges that palm-oil production is inherently unsustainable, that “mass balance” certification is an “accounting trick” by which some sustainably sourced material is mixed in with a large production batch, and that RSPO (the Roundtable on Sustainable Palm Oil) is merely an industry trade association
10 New Complaints rather than an independent third party. The plaintiff asserts New York deceptive-practices, false-advertising, and misbranding claims. “No Artificial” Claims Dip into, Well, Dips Livingston v. Target Corp., No. 160722/2026 (N.Y. Sup. Ct. Aug. 24, 2026). A New York consumer alleges a major retailer’s spinach artichoke dip is misleadingly labeled “No Artificial Flavors or Preservatives” despite containing ascorbic acid. The complaint characterizes commercial ascorbic acid as an artificial preservative produced through industrial processes and alleges it performs antioxidant, acidulant, chelating, and antimicrobial functions. The plaintiff asserts New York GBL Sections 349 and 350 claims on behalf of a proposed New York class.
11 Petits Fours Presentations Sam Jockel and Angela Spivey will lead the “Bet-the-Company Issues in the Age of MAHA: Enforcement, Investigations & Strategic Responses” roundtable at the FoodBev Exchange conference on October 7. Publications & Media Elise Bowen, Sam Jockel, and Ryan D’Souza wrote the advisory“Court Declines toToss Oregon EPR Law: Compliance Obligations Remain in Place (For Now).” (September 1, 2026) Sam Jockel, Angela Spivey, and Karly Bader wrote the advisory “FDA Proposes Rule to Eliminate Self-Affirmed GRAS Pathway.” (August 11, 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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