Testori v. Nestlé Health Science US Holdings, Inc., —
F.Supp.3d —-, 2026 WL 1282540, No. 1:25-cv-01318-JLT-CDB (E.D. Cal. May 11,
2026)

The court dismissed California
claims against Carnation Breakfast Essentials Nutritional Drink. The drink
label highlighted its 10g of protein per serving, while “fail[ing] to disclose
with equal prominence that the Product’s first two ingredients are water and
… 11 grams of sugar per serving.” Reasonable consumers would allegedly not
expect a product marketed as ‘Breakfast Essentials’ to contain more sugar than
protein.

The court first addressed preemption. Health or nutrient
content claims are regulated by the FDA, but not every statement is a health or
nutrient content claim. “Based on the FDA’s express decision to not recognize
sugar as a disqualifying nutrient, various district courts have now adopted the
finding that ‘any claim under state law solely premised on the notion that [a
product’s] high sugar content made its health or implied nutrient content
claims misleading is preempted.’”  

In this case, the “nutritional drink” statement was right
above four additional statements stating: “10g protein,” “21 vitamins +
minerals,” “3x vitamin vs. milk,” and “2x calcium vs. Greek Yogurt.” The
context of the packaging thus “implies that the reason that the drink is a
nutrition drink is that it contains the nutrients … listed directly below
that phrase on the bottle.” In Clark v. Perfect Bar, LLC, 816 F. App’x 141 (9th
Cir. 2020) (Mem.), the court said: “Allowing a claim of misbranding under
California law based on misleading sugar level content would ‘indirectly
establish’ a sugar labeling requirement ‘that is not identical to the federal
requirements,’ a result foreclosed by our precedent.” Clark dealt with facts
almost on all fours with the facts alleged here. The complaint was filled with
contentions related to “health” and “nutrition.” Thus, preemption applied.

Even if it didn’t, plaintiff failed to state a claim. Although
consumers should not be expected to ignore the misleading representation on the
front label and discover the truth on the back label, here, “none of the
challenged statements reference the sugar content of the product[ ] … [or]
even mention[ ] sugar.” Any ambiguity was cured by the accurate reporting of
the sugar content on the Nutrition Facts Panel, especially because the product
didn’t make any assertion about overall “health” or “balanced/healthy diet.” The
product didn’t become less—or cease to be—“nutritional” due to the added sugar.
The reference to “10g protein,” “21 vitamins + minerals,” “3x vitamin vs.
milk,” and “2x calcium vs. Greek Yogurt” was not a claim that the product was
“nutritionally balanced.” Nor did the front label mention or suggest anything about
added sugar.

In a footnote, the court commented that “Modern
advertisements frequently use phrases like, ‘You need this,’ ‘You have to use
this,’ or ‘This is essential for your health.’ A reasonable consumer would
understand the need to view such statements with a grain of salt, and not take
an expansive, strenuous, and atextual interpretation of them ….”

from Blogger https://tushnet.blogspot.com/2026/05/high-sugar-content-doesnt-make.html