False advertising class action can proceed against PepsiCo over Gatorade protein bars, judge says

SAN JOSE (CN) — A federal judge will allow some false advertising claims to proceed in a class action against PepsiCo from consumers who say the company markets its Gatorade protein bars as healthy despite their high fat and sugar content.

A single serving of a Gatorade protein bar exceeds daily limits for added sugars recommended by the American Heart Association for women and youth, the class plaintiffs said in their 2023 complaint filed in federal court in California. It also approaches the recommended limit for men, they said.

Because PepsiCo fails to clearly state recommended daily limits for sugar like it does for fat and sodium, consumers are left in the dark about these high sugar levels, the plaintiffs argue. They claim PepsiCo’s omissions violate multiple federal and state statutes, including the California Unfair Competition Law, the California Consumer Legal Remedies Act, California’s False Advertising Law and the federal Food, Drug and Cosmetic Act, among other FDA policies.

PepsiCo had moved to dismiss the plaintiffs’ claims, arguing that they were preempted under the Food, Drug and Cosmetic Act.

The beverage giant argued its protein bars already comply with federal labeling requirements and that a victory for the plaintiffs would impose new and additional rules. The company also argued that in pursuing both federal and state law claims, the plaintiffs sought to “hold PepsiCo liable under state law for labeling sugar content in the way that federal law requires.”

Nonetheless, in a ruling this week, U.S. District Judge Casey Pitts opted to allow some of the claims to survive.

“PepsiCo is correct that plaintiffs’ claims are preempted to the extent they challenge health or protein-content claims that are consistent with federal regulations," the Joe Biden appointee wrote in his 19-page order on Wednesday. At the same time, the judge found that some of the plaintiffs’ claims for false or misleading advertising “cannot reasonably be construed as health or nutrient-content claims” and therefore aren’t preempted.

The protein bars’ packaging included statements such as “protein to help muscles rebuild,” which might constitute a health claim, Pitts wrote. But he noted that plaintiffs also relied on other statements made on packaging, including that the bars were “backed by science” and “used by the pros.”

“These statements do not involve health or nutrient-content claims regulated by the FDA, so federal law does not preempt plaintiffs’ state law claims premised thereon,” Pitts wrote. Thus, he said, a reasonable consumer could have plausibly been deceived by “PepsiCo’s marketing campaign and self-proclaimed science-backed claims.”

“Nothing more is required to avoid dismissal,” Pitts added.

Still, Pitts denied injunctive relief to the plaintiffs, noting that they did not face a risk of imminent harm that would be remedied by an injunction. Although the packaging’s sugar disclosures “might be insufficient,” he wrote, “plaintiffs can no longer claim such ignorance” and “can avoid any future injury simply by reviewing the bars’ labels.”

An attorney for the class plaintiffs declined to comment for this story. PepsiCo did not respond to multiple requests by press time.