False advertising suit over Nestle glucose drink survives

SAN FRANCISCO (CN) — A federal judge ruled Friday morning that she was going to allow claims to survive against Nestle over deceptive advertising of a drink it sells that purports to help diabetics manage their disease.

U.S. District Judge Jacqueline Scott Corley, a Biden appointee, wrote in her 14-page order on summary judgment that a reasonable jury could find that two of the three named plaintiffs — Bruce Horti and Steven Owen — were deceived by the packaging of Nestle’s BOOST Glucose Control drink because it purports to control glucose and says that it “helps manage blood sugar.”

“Plaintiffs presented evidence Mr. Horti did interpret ‘Boost Glucose Control’ and ‘designed for people with diabetes’ to mean the product would have a positive effect on his blood sugar levels. And drawing all inferences in Plaintiffs’ favor, a reasonable trier of fact could find the label is misleading even though it discloses the four grams of sugar because a product could contain sugar and have a therapeutic effect on glucose levels,” Corley wrote. “So, there is a dispute of fact as to whether the challenged representations — when viewed alongside the other statements on the label — are misleading. Put another way, having found a genuine dispute of fact as to whether Mr. Horti was personally deceived, the court will not rule as a matter of law that Mr. Horti could not have been deceived because the label was not misleading.”

In their 2021 complaint, the named consumers who purchased Nestle’s BOOST Glucose Control drinks said that they were deceived by the packaging of the product, which they believed could help lower their blood glucose, and that they would have not purchased the product or paid less for it if they knew it didn’t lower blood glucose levels.

The plaintiffs said the name “Glucose Control” and the drink label’s claim that it was “designed for people with diabetes” and “helps manage blood sugar” led them to purchase the drinks.

The case was dismissed in federal court in 2022 for lack of standing but was revived by the Ninth Circuit in 2023. The Ninth Circuit found that three representations on the drink’s bottle, along with product placement on store shelves, were enough for reasonable consumers to be misled.

Corley granted summary judgment to Nestle on claims by plaintiff Sandra George, however, because she said the record shows George continued to purchase the drink even after learning that the label was deceiving. Corley also ruled that Horti and Owen were limited to challenging the “Boost Glucose Control” and “designed for people with diabetes” representations on the packaging, and denied them any injunctive relief because they’ve said they will not purchase the product again in the future.

At a motion for summary judgment hearing on Thursday, Timothy Loose, representing Nestle, told Corley that the plaintiffs knew the BOOST drink was not a miracle cure for diabetes.

“Nobody in this three-plaintiff population thought that there was anything they could eat or drink, including BOOST Glucose Control, that would cause their blood sugar levels to go down,” Loose said. “None of these plaintiffs thought this was medication.”

Corley pushed back, noting Horti said in a deposition that he sincerely believed the drink was supposed to “improve blood sugar.” She said Horti had to have seen the misrepresentation on the product when he bought it, and a jury could find that he was deceived.

“It is possible for the drink to be better for you and helpful for diabetics and, at the same time, not cause a reduction in your blood sugar level,” Loose replied. “The theory that the plaintiffs need to prove is that the people who bought this expected their blood sugar levels to get better no matter what.”

“That’s a great jury argument. That is not a summary judgment argument. Are you asking me to draw inferences in Nestle’s favor?” Corley quickly replied, adding that it is not realistic for the plaintiffs to know everything about diabetes just because they live with the disease.

“They don’t know. They’re not doctors. What a jury could find is that they’re being sold a product that is designed for diabetics and is better for them,” Corley said. “If they had called it ‘BOOST Low Sugar,’ we wouldn’t be here.”

Trenton Kashima, counsel for the plaintiffs, said that the BOOST drink’s only benefit was that it was low in carbohydrates and that each plaintiff’s depositions showed they only bought the drink because they thought it would help their disease. He agreed with Corley that summary judgment was not appropriate and that the case presented numerous questions of facts for a jury.

At the end of the hearing, Corley told Loose that she was leaning toward denying summary judgment to Nestle, telling him that there were numerous issues of fact and that if she granted the motion, the Ninth Circuit would likely reverse it for the same reasons it reversed her order the first time.

“That’s my view. I’ll write something,” Corley said at the end of the hearing.