Issue 1 (August 31, 2026)

This week brought reports of new proposed class actions against David Protein and Liquid Death over "zero sugar" claims, on top of a suit filed August 7 in the Northern District of California against Liquid I.V. The theory in each case is identical. The front panel says "zero sugar" or "sugar free," the ingredient list says allulose, and allulose is a sugar.

That last point — that allulose is a sugar — was settled in July. In Franco v. Chobani, the Seventh Circuit revived a dismissed "zero sugar" case after FDA filed an amicus brief stating that allulose is a monosaccharide and therefore a sugar under the labeling regulation. FDA's 2020 guidance saying it would not take enforcement action against allulose labeling? Enforcement discretion, not an interpretation of the rule. The court held that FDA's enforcement discretion does not shield a company from a state consumer-protection claim. The Liquid I.V. complaint alleges 4 to 5 grams of allulose per serving against a 0.5-gram threshold under 21 C.F.R. § 101.60(c) for a "sugar free" claim, and the David Protein and Liquid Death complaints follow the same template.

Many of us have relied on guidance documents and enforcement discretion to approve claims we would not have approved without them. We always knew that protection could evaporate. I, for one, did not expect it to happen this fast.

FDA is not the problem. FDA said it will leave allulose labeling alone. Nothing in the Chobani decision changes that.

The problem is private litigation — class actions under state consumer-protection statutes, filed by firms that now have an appellate win and an FDA amicus brief to staple to every complaint. Cheap to file. Expensive to dismiss.

The products at risk? Probably the ones you least want to touch. Allulose let you put "zero sugar" on the front panel without stevia's aftertaste or sugar alcohols' gut issues. That claim likely justifies the price point. Pull the claim and your SKU now competes with sugar-sweetened SKUs.

None of this means the plaintiffs will win, and it does not mean you have to pull the claim tomorrow. But the risk has changed, and you need to decide whether you are comfortable staying the course. This is a C-suite decision, not a regulatory memo.

And this is bigger than allulose. Walk your product line. Count every front-of-pack claim that rests on a guidance document, an enforcement policy, or a warning-letter pattern instead of the text of a regulation. Every one is a bet that the agency keeps looking away, that no plaintiff's firm tests it. Allulose is what happens when that bet loses.

The question for Monday morning: how many more are in the portfolio?

If you use allulose — or any ingredient whose labeling treatment rests on a guidance document — this is the time to look at the front panel, the Nutrition Facts, and the agreement that says who pays when a claim gets challenged.

Here is what the Seventh Circuit actually held. The regulation at 21 C.F.R. 101.9 defines total sugars as the sum of all free monosaccharides and disaccharides. The examples in the parenthetical — glucose, fructose, lactose, sucrose — are illustrative, not exhaustive. Allulose is a monosaccharide. That makes it a sugar under the rule, full stop. FDA's decision not to enforce the rule against allulose labeling is enforcement discretion, and the court held that enforcement discretion receives no deference as an interpretation of what the regulation means. FDA's own amicus brief — the one that said allulose is a sugar — closed off any argument that the 2020 guidance reflected the agency's reading of the rule rather than a choice not to enforce it. And the guidance itself makes the point for the plaintiffs. It says on its face that it "do[es] not establish legally enforceable responsibilities" and "should be viewed only as recommendations." It describes FDA's "intent to exercise enforcement discretion" for excluding allulose from Total Sugars and Added Sugars "pending review of the issues in a rulemaking" — rulemaking that, six years later, has not happened. The 2020 guidance never said allulose is not a sugar. It said FDA would not enforce the rule that says it is one.

The result: a "zero sugar" or "sugar free" claim on a product with 4 to 5 grams of allulose per serving is a question of fact for the jury on whether reasonable consumers were misled.

Under the NLEA, states cannot impose labeling requirements that are "not identical to" the federal standard. That is the preemption provision, and it is what most companies think of when they hear "preemption." But the NLEA also has a savings clause: state claims that enforce the same standard the federal regulation already imposes are not preempted. If a state consumer-protection claim says "this label violates the federal rule," the state is not adding a new requirement — it is enforcing the existing one. That is the lane these plaintiffs are in.

The Liquid I.V. complaint makes the move explicitly. It pleads California UCL, CLRA, and FAL claims alongside New York GBL §§ 349 and 350, and it uses federal misbranding under the FDCA as the predicate for every one of them. The argument: allulose is a sugar under 21 C.F.R. 101.9, the product contains more than 0.5 grams of it per serving, so the "sugar free" claim violates the federal labeling rule — and that violation is independently actionable under state consumer-protection law. The complaints are drafted to stay inside the savings clause, not run into the preemption provision. Expect every complaint in this wave to follow the same template.

Expect this wave to spread beyond allulose. Any sweetener, fiber, or ingredient whose favorable labeling treatment comes from a guidance document, a citizen-petition response, or an enforcement policy is now a target. FDA itself identifies three sugars "metabolized differently than traditional sugars" that are in commercial use: allulose, D-tagatose, and isomaltulose. All three meet the chemical definition of a sugar under § 101.9 — which means the same textual argument that works against allulose works against any of them in a "zero sugar" claim.

D-tagatose is next. In November 2025, FDA issued a supplemental response to a Bonumose citizen petition stating it intends to exercise enforcement discretion for excluding D-tagatose from both "Total Sugars" and "Added Sugars," pending future rulemaking. That is exactly the same posture FDA took on allulose — and exactly the posture the Seventh Circuit held does not shield a company from state consumer-protection claims. Any product using tagatose with a "zero sugar" claim sits where allulose products were before Franco v. Chobani. Isomaltulose is earlier in the process — FDA has not yet issued a comparable enforcement-discretion position — but it is a disaccharide, so it falls within the regulation's definition of total sugars and the structural exposure is the same.

The vulnerability is not limited to sweeteners. FDA's June 2018 guidance announced enforcement discretion for declaring certain isolated or synthetic non-digestible carbohydrates as "dietary fiber" on the Nutrition Facts label, pending rulemaking. The affected ingredients include mixed plant cell wall fibers, arabinoxylan, inulin and inulin-type fructans, high amylose starch, galactooligosaccharide, polydextrose, and resistant maltodextrin. A "high fiber" or "good source of fiber" claim on a product containing one of these ingredients rests on the same enforcement-discretion foundation that just cracked for allulose. The theory of liability would differ — overstating fiber content rather than understating sugar content — but the structural problem is identical.

On the contract side, the question is who pays. Co-manufacturing and ingredient supply agreements typically allocate labeling responsibility to the brand owner, and the co-man's indemnity for "compliance with specifications" will not reach a claim that the brand's own label was misleading. Ingredient suppliers that marketed allulose as "not a sugar" for labeling purposes may have made representations worth revisiting, and some supply agreements include regulatory-status warranties that could apply.

For those keeping score at home: