Chobani's "zero sugar" yogurt with allulose violates FDA regs despite FDA's nonenforcement; 7th Circuit reverses preemption ruling

Franco v. Chobani, LLC, No. 25-2087 (7th Cir. Jul. 27, 2026)

Federal law requires that foods advertised as sugar free contain less than a half gram of sugar. Chobani sold Chobani Zero Sugar Yogurt, but it included four grams per serving of allulose, a naturally occurring sweetener. If allulose is a sugar under federal law, Franco’s state law false advertising claims could proceed, but if it wasn’t, then there was express preemption because federal law doesn’t allow states to impose additional requirements on food labeling regulated by the FDCA. The district court, deferring to FDA enforcement guidance, found preemption. The court of appeals reversed, finding allulose to be a sugar under the regulation.

The relevant regulation defines “[t]otal sugars” as “the sum of all free mono- and di-saccharides (such as glucose, fructose, lactose, and sucrose).” And a food may not be labeled “sugar free” or “zero sugar” (or similar terms) unless it “contains less than 0.5 g of sugars, as defined by [the previous regulation]” and meets other requirements.

Hello, Loper Bright! “Interpreting the law is a job for the court,” though the court isn’t required to ignore the FDA’s perspective about the meaning of its regulations, and deference to agency interpretation of an ambiguous rule “can be appropriate.” The FDA has several times expressed a view: in 2016, it observed that “the final rule does not reach a decision as to whether Allulose should be excluded from the [definition] of sugar[] … , and Allulose, as a mono-saccharide, must be included in the [Total Sugars] declaration … pending any future rulemaking that would otherwise exclude this substance from the declaration.” In 2020, it issued industry guidance advising “manufacturers of [FDA’s] intent to exercise enforcement discretion for the exclusion of allulose from the amount of ‘Total Sugars’ and ‘Added Sugars’ declared on the label … pending review of the issues in a rulemaking.” (The issue appears to be that the FDA traditionally used chemical structure to identify sugars, but novel sugars might also count depending on factors such as an association with dental caries and how they are metabolized in the body.)

No further rulemaking has occurred, but the court of appeals called for the views of the FDA. In its resulting amicus brief, the agency took the position that total sugars as defined in that regulation include all monosaccharides, including allulose. The “such as” parenthetical at the end of the regulation was “merely a list of non-exhaustive, illustrative examples, and not (as the district court found) a limitation on sugars based on the physiological characteristics that the listed sub-stances shared.” And an enforcement position isn’t an interpretation of a regulation. The court of appeals found this persuasive. “There’s no dispute that allulose is a monosaccharide. Because the definition includes every monosaccharide and the following parenthetical is merely a list of examples, allulose is a sugar.”

The surplusage and noscitur a sociis canons didn’t change anything. Chobani argued that a “sugar” needed the same nutritional characteristics as glucose, fructose, lactose, and sucrose. The surplusage canon suggested that the “such as” parenthetical should have some meaning, but redundancy is common in the law, and “such as” doesn’t always mean “of the same kind”;  it can merely introduce “examples of a class.” “The FDA defined a class by way of chemistry; it reinforced that definition through examples, all of which share the same chemical structure.” There’s no need to derive a definition from the list of examples, since they merely illustrate the definition that already appears. Nor did Chobani argue that a definition of sugars that includes all monosaccharides will lead to absurd results. “And in defining total sugars, the FDA specifically invoked the language of chemistry, which means decisions favoring common parlance meanings aren’t persuasive, either.” The FDA could have defined total sugars based on physiological factors, rather than chemical makeup, but it didn’t do so.

The regulation wasn’t ambiguous, so there was no reason to defer to the FDA’s enforcement guidance, which wasn’t an official position anyway.

What about the marketing permit Chobani secured from the FDA? “[T]he fact that one sovereign (the United States) indicated that it would not enforce its labeling requirements with respect to allulose should not have led Chobani to believe that the states would take a similar approach. Similarly, … the agency’s marketing permit said nothing about state law consumer protection suits. Chobani is a sophisticated actor and should have been aware that the FDA’s decisions about its enforcement priorities would not immunize the company from suits based on state law.”

Chobani’s additional preemption theory based on Monsanto Co. v. Durnell, 609 U.S. ---, 2026 WL 1825691 (June 25, 2026), could be handled on remand by the district court.

Deception was also plausible. Chobani argued that consumers don’t care about the existence of monosaccharides in their food but are instead concerned with avoiding the ad-verse health consequences associated with traditional sugars. “Whether reasonable consumers care about the existence of allulose in their yogurt isn’t the same thing as asking whether reasonable consumers would be deceived by it.” Discovery was the right next step.