The U.S. Food and Drug Administration rarely appears as amicus curiae in private consumer class actions regarding food labeling, yet it did so in Franco v. Chobani, LLC,[1] to take a position seemingly contrary to its own earlier guidance. In Franco, a district court in the Northern District of Illinois determined that Chobani Zero Sugar yogurts were appropriately labeled as having zero sugar despite containing allulose, deferring to FDA’s position reflected in a 2020 enforcement discretion policy that allulose does not count towards the “Total Sugars” calculation under FDA regulations. On appeal, the Seventh Circuit invited FDA to weigh in, and FDA effectively disclaimed its previously articulated views in the 2020 policy. The Seventh Circuit agreed with FDA and reversed the district court’s dismissal, which had rested on the premise that the regulatory definition of “sugars” was ambiguous and that FDA’s guidance was an authoritative interpretation entitled to Auer deference. FDA’s “clarification” of its own prior position in the midst of a private litigation is a reminder to the industry to look first to the statute and regulations rather than basing risk calculations solely on non-binding agency guidance or policy that could change at any time.
The Regulatory Background
A food may not be labeled “sugar free” or “zero sugar” unless it contains less than 0.5 grams of “sugars, as defined in [21 C.F.R.] § 101.9(c)(6)(ii), per reference amount customarily consumed and per labeled serving.”[2] “Total Sugars” is defined as “the sum of all free mono- and disaccharides (such as glucose, fructose, lactose, and sucrose).”[3] Allulose is a monosaccharide, essentially a simple sugar, but is metabolized differently than most sugars in that it contributes minimal calories and does not meaningfully raise blood glucose, insulin, or the risk of tooth decay.[4] In 2020, FDA issued guidance (the “Allulose Guidance”) stating that it would exercise enforcement discretion to not require that allulose be counted toward the Total Sugars declared on the Nutrition Facts panel, pending a rulemaking the agency has not initiated to date.[5]
Against this backdrop, Chobani launched a line of yogurt products labeled as “Zero Sugar,” sweetened with four grams of allulose per serving. Notably, in order to market the product as “yogurt” despite not conforming to the applicable standard of identity, Chobani sought and obtained, in advance, a temporary marketing permit from the FDA in which it disclosed the product’s labeling to the agency.[6]
The Initial Challenge and District Court Decision
On May 15, 2023, plaintiffs filed a lawsuit alleging that the Chobani “Zero Sugar” yogurt was falsely and misleadingly labeled under various state consumer protection laws due to the presence of allulose.[7]
In granting Chobani’s motion to dismiss, the district court held that the regulatory definition of “sugars” was ambiguous and deferred to FDA’s purported interpretation set forth in the Allulose Guidance under Auer.[8] On that reading, a mono- or disaccharide counts as a sugar only if it “present[s] the same nutritional characteristics” as glucose, fructose, lactose, and sucrose — including calories, effect on blood sugar, and cavity risk — which allulose does not.[9] The court accordingly found the Allulose Guidance “authoritative [and] official,”[10] concluded Chobani Zero Sugar contained zero grams of sugar per serving as a matter of law, and held the plaintiffs’ claims preempted.[11]
The Seventh Circuit Decision
On appeal, the parties agreed that FDA’s views would be helpful, and the Seventh Circuit invited the agency to weigh in, framing the question narrowly: whether allulose is a “sugar” as defined at 21 C.F.R. § 101.9(c)(6)(ii).[12] In its brief, the FDA disagreed with the district court’s decision, stating that the regulatory definition was not ambiguous and explaining that “[a]llulose is part of ‘Total Sugars’ because the plain meaning of the regulatory definition includes every free monosaccharide.”[13] Moreover, addressing its own guidance, FDA was direct: the 2020 Allulose Guidance “did not ... provide a ‘considered answer’ to an ‘interpretive question’” but instead announced an enforcement position, non-binding by its own terms and never intended to amend the regulatory definition.[14] The agency was careful not to weigh in on the issue of preemption, stating that it “takes no position ... on the ultimate question of whether plaintiffs’ claims are preempted by federal law.”[15]
The Seventh Circuit agreed with the agency, holding that the regulation was not ambiguous and, even if it were, the 2020 Allulose Guidance was not entitled to Auer deference because it did not represent FDA’s official position on the regulatory definition of “Total Sugars”; rather, it was only “an announcement of a change in enforcement policy.”[16] The panel concluded that while Chobani could reasonably have believed itself safe from federal enforcement given that FDA reviewed the products’ labels to grant temporary marketing permit authorization, neither the Allulose Guidance nor the marketing permit shielded the company from state consumer-protection suits. Moreover, one sovereign’s decision not to enforce its own requirements is no assurance that the states will follow suit, and a “sophisticated actor” like Chobani should have understood the difference. Ultimately, the court concluded that the “federal requirements at issue are plain—food products cannot be labeled sugar free unless they have less than half a gram of sugar, and sugars include every monosaccharide, including allulose.”[17] Because the plaintiffs sought to enforce an identical requirement, their claims were not preempted.
Subsequent Litigation Following the Seventh Circuit Decision
Following the Seventh Circuit’s decision in Franco, a raft of new class actions invoking the decision were filed, including against the manufacturers of Liquid Death, David protein bars, Special K cereal, and KIND bars, each challenging an allulose-sweetened “zero sugar,” “0g sugar,” or “zero grams added sugar” claim.[18] Other such lawsuits are likely to follow as long as FDA’s stated position in its Franco amicus brief remains the agency’s latest published statement on allulose as a sugar.
This alert is provided for general informational purposes only and does not constitute legal advice. KKB will continue to monitor developments in Franco and other related litigations. For guidance specific to your products, please contact us.
[1] Franco v. Chobani, LLC, 184 F.4th 599 (7th Cir. 2026).
[2] 21 C.F.R. § 101.60(c)(1)(i) (for foods other than meal products or main dish products).
[3] 21 C.F.R. § 101.9(c)(6)(ii).
[4] Brief for the United States as Amicus Curiae at 2–3, Franco v. Chobani, LLC, 184 F.4th 599 (7th Cir. 2026) (No. 25-2087) [hereinafter FDA Amicus Brief].
[5] FDA, The Declaration of Allulose and Calories from Allulose on Nutrition and Supplement Facts Labels: Guidance for Industry 1, 8–9 (Oct. 2020) [hereinafter Allulose Guidance], https://www.fda.gov/media/123342/download.
[6] Yogurt Products Deviating From Standard of Identity; Temporary Permit for Market Testing, 88 Fed. Reg. 18,322 (Mar. 28, 2023), https://www.federalregister.gov/d/2023-06390. Note that FDA did not weigh in on the “zero sugar” claim as part of the authorization of the temporary marketing permit.
[7] Complaint, Franco v. Chobani, LLC, No. 1:23-cv-03047 (N.D. Ill. filed May 2023).
[8] Franco v. Chobani, LLC, 789 F. Supp. 3d 584, 608 n.36 (N.D. Ill. 2025), rev’d, 184 F.4th 599 (7th Cir. 2026) (citing Auer v. Robbins, 519 U.S. 452 (1997)).
[9] Id. at 609.
[10] Id. at 611 (quoting Kisor v. Wilkie, 588 U.S. 558, 577 (2019)).
[11] Id. at 613.
[12] Franco, 184 F.4th at 603–04.
[13] FDA Amicus Brief, supra note 4, at 12.
[14] FDA Amicus Brief, supra note 4, at 21.
[15] FDA Amicus Brief, supra note 4, at 22.
[16] Franco, 184 F.4th at 606.
[17] Id.
[18] See Complaint, Williamson v. Supplying Demand, Inc., No. 4:26-cv-08839 (N.D. Cal. filed Aug. 24, 2026) (“0g Sugar” and “Zero Sugar” claims on Liquid Death Sparkling Energy); Bender-Long v. WK Kellogg Co., No. 2:26-cv-09438 (C.D. Cal. filed Aug. 24, 2026) (“Zero Added Sugar” claims on Special K cereals); Coprew v. KIND LLC, No. 1:26-cv-07380 (S.D.N.Y. filed Aug. 28, 2026) (“ZEROg Added Sugar” claims on four KIND bar varieties). Parallel actions against Linus Technology MergerSub, maker of David protein bars, were also filed in the Northern District of California and Central District of California. See Yovino v. Linus Technology MergerSub, No. 3:26-cv-08834 (N.D. Cal. Filed August 24, 2026) (“0g sugar” claim on David GOLD protein bars); McCarthy v. Linus Technology MergerSub, No. 2:26-cv-09958 (C.D. Cal. Filed Sept. 4, 2026) (“0g sugar” claim on David protein bars).
