On July 27, 2026, the Seventh Circuit put a yogurt label back in front of a jury pool, holding in Franco v. Chobani, LLC, No. 25-2087, that federal law does not preempt state consumer claims against a “zero sugar” product containing roughly 4 grams of allulose per serving, after the Food and Drug Administration filed an amicus brief telling the court that allulose is, under the agency’s own labeling regulation, a sugar. Jason and Abigail Franco bought Chobani Zero Sugar yogurt at a Costco near Chicago in 2023; the district court threw their case out on preemption grounds; a panel of Judge Kirsch, joined by Judges Rovner and Maldonado, reversed and remanded. Within weeks, plaintiffs’ firms had converted the reasoning into a docket strategy, with FoodNavigator reporting on September 3, 2026 a set of proposed class actions naming David Protein, Liquid Death, Liquid IV, WK Kellogg, and Kind over sugar-free and zero-sugar representations on allulose-sweetened products. None of those follow-on claims has been adjudicated, and Franco itself decided nothing about whether the label actually deceived anyone.
The arithmetic hiding inside 21 C.F.R. § 101.9(c)(6)(ii)
Allulose is D-psicose, a six-carbon monosaccharide with the same C6H12O6 formula as fructose and glucose, differing from fructose only in the stereochemistry at the third carbon. That single epimeric flip is why it tastes sweet and why the body largely declines to use it: most ingested allulose is absorbed and excreted rather than metabolized, so it delivers a fraction of sucrose’s calories and has minimal effect on blood glucose. That metabolic behavior is the entire commercial case for the ingredient. It is not, however, what the labeling regulation measures.
Under 21 C.F.R. § 101.9(c)(6)(ii), “total sugars” is defined as the sum of all free mono- and disaccharides, followed by an illustrative list including glucose, fructose, lactose, and sucrose. The zero-sugar and sugar-free nutrient content claim is governed separately, at 21 C.F.R. § 101.60(c)(1), which permits the claim only where a serving contains less than 0.5 gram of sugars as defined by § 101.9(c)(6)(ii). The Francos’ complaint puts approximately 4 grams of allulose in a serving of the yogurt, which is eight times the threshold if allulose counts. The dispute in Franco, stripped down, was whether a chemically unambiguous monosaccharide can be excluded from a definitional sum written in terms of monosaccharides because the agency has said it will not enforce against manufacturers who leave it out of the Nutrition Facts panel.
Enforcement discretion is a promise about the agency, not a rewrite of the text
FDA’s allulose guidance, finalized in 2020, is a statement of enforcement discretion. It tells manufacturers the agency does not intend to object if allulose is excluded from Total Sugars and Added Sugars declarations, and directs a reduced calorie factor reflecting the ingredient’s limited metabolism, pending rulemaking. The document is explicit that it does not bind the agency or regulated parties and does not amend the definition at § 101.9(c)(6)(ii). Judge Tharp of the Northern District of Illinois nonetheless read the guidance as the operative federal standard, dismissing on the theory that state-law claims would impose requirements not identical to federal ones.
FDA’s amicus brief told the Seventh Circuit that this got the regulatory chemistry backward. The definition, the agency argued, is unambiguous on its face: total sugars means the sum of all free mono- and disaccharides, the “such as” list is illustrative rather than exhaustive, and allulose is a monosaccharide and therefore a sugar within the regulation. The panel agreed that the text controls, and held that an exercise of enforcement discretion, including a temporary marketing policy, does not immunize a manufacturer from state-law consumer protection claims that track the federal requirement. On this record, the preemption defense failed. The court also concluded that the plaintiffs plausibly alleged deception, which is a pleading standard, not a verdict.
What remand actually leaves open
The case returns to the district court with the merits fully live. Whether a reasonable consumer would read “zero sugar” as a statement about grams of monosaccharide rather than about glycemic and caloric impact, whether the Francos can establish injury, and whether class treatment is appropriate all remain to be litigated. Chobani has said publicly, as reported on July 28, 2026, that its Nutrition Facts panel accurately reflects 0 grams of total sugar. That is a company position, and it is not incoherent: under FDA’s continuing enforcement discretion, a panel showing 0 grams of total sugars is something the agency has said it will not pursue. The Seventh Circuit did not hold that the panel figure is correct as a matter of the regulation, and it did not need to, because the front-of-pack nutrient content claim is what the complaint targets.
Two things can therefore be true at once, which is the uncomfortable center of this litigation wave. A label can sit inside FDA’s stated non-enforcement posture and still face private state-law exposure in a circuit that reads § 101.9(c)(6)(ii) the way the agency’s amicus does. That asymmetry is what the FoodNavigator-reported suits against beverage, cereal, and snack brands are testing, and it is why the reformulation and label-review conversations inside those companies moved faster than any docket will.
The durability of the result is genuinely uncertain. Franco binds only the Seventh Circuit; district courts elsewhere have read the same guidance as more preemptive, and appellate splits over food labeling preemption are not rare. FDA retains the option it flagged in 2020, which is notice-and-comment rulemaking to formally address how allulose is declared, an outcome that would displace much of the current ambiguity in either direction. What has not happened is a ban, a recall, or a finding that any of these products broke the law. What has happened is narrower and more consequential for compliance drafting: a federal appellate court, prompted by the agency itself, distinguished three separate questions that the market had been treating as one. Whether a compound is a sugar under the CFR is chemistry and text. Whether FDA will act on a deviation is discretion. Whether a private plaintiff can sue over it is neither.
This article is general information about ongoing litigation, not legal advice. The case was remanded rather than finally decided, and later proceedings or rulemaking may change the legal position.
Correction, 15 September 2026: The excerpt was revised to state the procedural result and remove the unsupported claim that the ruling threatened an entire product category.