high sugar content doesn't make "Breakfast Essentials" name or health claims misleading

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 ….”