“Zero sugar” and “sugar free” claims on products containing allulose are emerging as a target for consumer class actions. The recent Seventh Circuit decision in Franco v. Chobani, LLC provides plaintiffs with a new theory for those cases: although the U.S. Food and Drug Administration (FDA) currently exercises enforcement discretion to permit manufacturers to exclude allulose from the “Total Sugars” and “Added Sugars” declarations in the Nutrition Facts panel, the agency has not amended the regulations defining “sugars” or governing nutrient-content claims such as “sugar free” and “zero sugar.” This distinction is already generating litigation. Although these cases are at an early stage, they suggest that allulose may be the latest primary target in food labeling class action litigation.
FDA regulations define total sugars as all free mono- and disaccharides, including allulose. Under 21 C.F.R. § 101.60(c)(1), “sugar free,” “zero sugar,” and similar claims generally require less than 0.5 gram of sugar per reference amount customarily consumed and per labeled serving. Section 101.60(c)(2) separately regulates “no added sugar” and similar claims.
In 2020, however, FDA issued guidance announcing enforcement discretion for excluding allulose from Total Sugars and Added Sugars declarations in the Nutrition Facts panel and using 0.4 calories per gram in calorie calculations. The nonbinding guidance did not amend FDA’s definition of sugar or the regulation governing front-of-package nutrient-content claims. That regulatory disconnect became the central issue in Franco.
In May 2023, plaintiffs Jason and Abigail Franco, along with two other consumers, filed a putative class action against Chobani, alleging that its “Zero Sugar” yogurt was falsely and misleadingly labeled because each serving contained approximately four grams of allulose. Plaintiffs alleged that allulose is a monosaccharide—and therefore a “sugar” under FDA regulations—and that Chobani’s “Zero Sugar” representations violated the consumer protection laws of numerous states because the product exceeded the regulatory threshold for “sugar free” and similar claims. The district court initially dismissed the action on preemption grounds, reasoning that FDA’s allulose guidance supported excluding allulose from the regulatory definition of sugar. Franco v. Chobani, LLC, 789 F. Supp. 3d 584 (N.D. Ill. 2025).
On appeal, however, the Seventh Circuit requested FDA’s views, and FDA took the position that the regulation unambiguously includes all monosaccharides—including allulose—and that its 2020 guidance merely announced an exercise of enforcement discretion rather than changing or interpreting the regulatory definition. The Seventh Circuit agreed, holding that allulose remains a “sugar” under the operative regulation and that FDA’s decision not to enforce certain labeling requirements does not insulate manufacturers from parallel state-law consumer protection claims. The court therefore reversed the dismissal, holding that the plaintiffs’ claims were not preempted and that they had plausibly alleged deception based on Chobani’s absolute “Zero Sugar” representation. Franco v. Chobani, LLC, 184 F.4th 599 (7th Cir. 2026).
Notably, Franco is binding only on federal courts in Illinois, Indiana, and Wisconsin. Other courts may reach different conclusions regarding FDA’s enforcement discretion policy, preemption, and issues Franco did not resolve, including the application of its reasoning to “no added sugar” claims.
Since the Seventh Circuit revived the Francos’ claims, plaintiffs have increasingly targeted allulose-containing products marketed with “zero sugar,” “0g sugar,” “sugar free,” and related claims, signaling a broader wave of allulose-focused consumer class action litigation. These cases include:
These cases are newly filed, and their allegations remain untested.
Although it remains to be seen how these cases will be resolved, companies marketing allulose-containing products should consider the following steps to evaluate and mitigate potential litigation exposure:
Franco does not resolve the regulatory treatment of allulose once and for all. FDA could undertake new rulemaking, courts outside the Seventh Circuit could disagree with Franco, and defendants in the newly filed cases have yet to present their defenses. But for now, the decision has created uncertainty for companies relying on FDA’s allulose enforcement-discretion policy while making affirmative sugar-related claims.
MoFo continues to monitor allulose labeling litigation, FDA activity, and developments in the newly filed cases. If you have questions about the implications of Franco or would like assistance evaluating sugar-related claims on products containing allulose, please contact the authors.