Defending Label Claims Built on FDA Enforcement Discretion: Allulose After Franco v. Chobani

Sarah L. Brew, Partner | Faegre Drinker Biddle & Reath LLP

Sarah Brew defends Fortune 500 food companies and retailers in consumer fraud class actions challenging the labeling and advertising of food products, including ingredient and nutrient content claims, “healthy” claims, and sustainability practices, and counsels food industry clients on labeling, advertising, and marketing regulations and litigation risk management. She leads Faegre Drinker’s food litigation and regulatory practice, which is nationally ranked by Chambers USA, and is one of only six lawyers in the country ranked in Band 1 by Chambers USA in Food & Beverages: Regulatory and Litigation.

• Education & Credentials

Sarah earned her J.D. magna cum laude from the University of Minnesota Law School, where she was elected to the Order of the Coif, and her B.A. magna cum laude from the University of Minnesota. She is admitted to practice in Minnesota and Wisconsin and before the U.S. Court of Appeals for the Eighth Circuit, the U.S. District Court for the District of Minnesota, and the U.S. District Courts for the Eastern and Western Districts of Wisconsin.

• Recognition & Leadership

Chambers USA has ranked Sarah nationwide in Food & Beverages: Regulatory & Litigation every year from 2013 through 2026. She is recognized in The Best Lawyers in America for Food and Beverage Law (2027), was named one of Minnesota Lawyer’s Top Women in Law in 2026, and was listed in Minnesota Super Lawyers for Class Action/Mass Tort from 2012 through 2023. Additional honors include Acritas Star Lawyer (2018–19), the Minneapolis/St. Paul Business Journal Women in Business award (2018), inclusion in Who’s Who in Product Liability Defence, and a Martindale-Hubbell AV Preeminent peer review rating. Within the firm she leads the food litigation and regulatory practice and is a leader of the national food and agribusiness industry group, which comprises more than 150 attorneys.

• Professional Involvement

Sarah speaks nationally on food labeling litigation, with presentations including “Consumer Fraud Labeling Class Actions: What’s Next?,” “Class Actions Procedure Update – Substantive Claims: Slackfill, Added Sugar, and Beyond,” “Food Labeling Class Actions and Strategies for Dealing With and Preventing Litigation” before the Food and Drug Law Institute, and the firm’s “Top 10 Food Regulatory and Litigation Developments From 2025” webinar. She has addressed the Consumer Brands Association, the Food Marketing Institute, the Food and Drug Law Institute, and the International Association for Food Protection. She served as co-chair of the American Bar Association’s Food & Supplements Subcommittee (2015–17), serves on the Food and Drug Law Institute’s Food and Dietary Supplements Committee and the Minnesota State Bar Association Food and Drug Law Section Council, is a member of the American Law Institute, and was elected to Food Lawyers Network International.

• Experience

For more than 20 years Sarah has focused on guiding food industry clients through regulatory, litigation, and business challenges. Her labeling work spans defense of consumer fraud class actions and counseling on FDA and USDA compliance, including published analyses of FDA’s proposed update to the definition of “healthy” on food labels and of the Supreme Court’s Loper Bright and Corner Post decisions and their implications for food industry regulations. She has also served as national counsel in many of the highest-profile outbreaks and recalls of the past two decades, guides clients through recalls, inspections, enforcement actions, and government investigations, and handles complex commercial litigation over the allocation and recovery of recall-related expenses, as well as supply chain contracts and due diligence in food company transactions.

August T. Horvath, Ph.D., Partner and Chair, Advertising & Marketing Practice | Foley Hoag LLP

August Horvath chairs the Advertising & Marketing Practice at Foley Hoag LLP in New York. His litigation, counseling, government enforcement, and self-regulatory practice spans all sectors of consumer products and services, with a particular focus on food and beverage labeling. He represents clients in private false advertising and deceptive practices litigation and in matters before the Federal Trade Commission, state Attorneys General, and the National Advertising Division. His Ph.D. and hands-on experience in survey research and statistical analysis inform his work developing substantiation protocols, designing and assessing research into the implied meaning of advertising claims, and working with and against expert witnesses.

• Education & Credentials

August earned his J.D. cum laude from Harvard Law School in 1996 and his Ph.D. in Communication Theory and Research from the University of Southern California in 1993, following studies at the University of Windsor (1988). He is admitted to the New York bar and practices before the U.S. District Courts for the Southern and Eastern Districts of New York, the U.S. Court of Appeals for the Sixth Circuit, the U.S. District Courts for the Northern and Southern Districts of Illinois, and the U.S. District Court for the Eastern District of Missouri.

• Recognition & Leadership

Chambers USA 2026 recognizes August as a leading lawyer in Food & Beverages: Regulatory & Litigation, and he has been listed among premier attorneys in The Legal 500 and New York Super Lawyers. The Food and Drug Law Institute presented him with its 2021 Service to FDLI Award. He is a fellow of the American Bar Foundation and chairs the firm’s Advertising & Marketing Practice.

• Professional Involvement

August has chaired the planning committee of the Food and Drug Law Institute’s Food Advertising, Labeling, and Litigation Conference and moderated its panels on current labeling issues and the year’s key court decisions, and he wrote the introduction to FDLI’s Top Food and Drug Cases, 2025. He serves as co-chair of the American Bar Association Section of Antitrust Law Agriculture and Food Committee, and in April 2026 presented the firm’s webinar on substantiating AI-driven advertising claims and testimonials.

• Experience

Over a career of more than 20 years, August has represented companies in the food and beverage, pharmaceutical, retail, sporting and consumer goods, and online services industries in false advertising and deceptive practices disputes, counseling them on how to substantiate and defend the marketing claims they wish to make and helping them challenge false and disparaging advertising by competitors. His antitrust experience includes civil and criminal matters with the Department of Justice Antitrust Division, FTC investigations, merger-related litigation, and private litigation. He joined Foley Hoag as a partner in January 2018 after serving as a partner in the New York office of Kelley Drye & Warren.

Josephine Pechous, Associate | Faegre Drinker Biddle & Reath LLP

Josephine Pechous is particularly well versed in the labeling and advertising of food products and dietary supplements, advising on regulatory compliance and industry best practices while anticipating potential litigation risks. As a member of Faegre Drinker’s nationally recognized food litigation and regulatory practice, she supports teams defending producers, manufacturers, distributors, and retailers in consumer class actions, foodborne illness litigation, and complex food contamination cases, with regulatory experience spanning product labeling and claim substantiation, food safety, dietary supplements, animal agriculture, and toxic torts.

• Education & Credentials

Josephine earned her J.D. summa cum laude from Vermont Law School in 2024 with a concentration in Food and Agriculture Law & Policy, serving as senior notes editor of the Vermont Journal of Environmental Law, and her B.A. summa cum laude in Molecular and Cellular Biology/Biochemistry from Drake University in 2021. She is admitted in Minnesota and before the U.S. District Court for the District of Minnesota.

• Recognition & Leadership

Vermont Law and Graduate School honored Josephine with its Learned Hand Award and its Scholarship & Leadership Award in 2024, and she was named to Faegre Drinker’s Pro Bono Honor Roll for 2024–25.

• Professional Involvement

Josephine writes on food labeling and product litigation, including “Dorris v. Danone: Stemming the Tide of Greenwashing Litigation” (January 2025), “Standing on Shaky Ground: Product Recalls Alone Do Not Constitute an Injury in Fact” on the Faegre Drinker on Products blog (September 2025), and “What is Country of Origin Labeling?” for the Center for Agriculture and Food Systems’ Labels Unwrapped (May 2024). She is a member of the Minnesota State Bar Association New Lawyers Section and contributes to the firm’s Pro Bono Immigration Team, the Southern Minnesota Regional Legal Services Wills Clinic, the Volunteer Lawyers Network Housing Clinic, and Advocates for Human Rights.

• Experience

Josephine translates complex food regulations into actionable solutions and drafts pleadings and client communications tailored to each matter’s objectives. As a law student she worked with small businesses on food labeling compliance and analyzed agricultural programs to inform legislative initiatives, and she joined Faegre Drinker after serving as a summer associate. She draws on a background in the biological sciences and hands-on experience in food science, bioinformatics, and sustainability.

SESSION 1 – Motion Practice and Class Defense in Zero-Sugar Labeling Cases | 2:30pm – 3:30pm

This session examines the defense motion strategy and class certification arguments available to food and beverage companies facing zero-sugar labeling claims after the Seventh Circuit’s reversal in Franco v. Chobani. Attorneys will analyze how preemption, Auer deference, primary jurisdiction, and the reasonable consumer standard performed — and failed — at each stage of the Franco litigation, and what those outcomes mean for pending cases in other circuits. Participants will leave with a doctrinal map of the strongest remaining defense arguments, a working understanding of class certification vulnerabilities in multi-state consumer-fraud suits, and a framework for advising clients whose allulose-containing products carry front-of-package zero-sugar claims.

BREAK | 3:30pm – 3:40pm

SESSION 2 – Sweet Spot: Evaluating Label Claims That Rest on FDA Enforcement Discretion or Guidance | 3:40 pm – 4:40pm

This session examines the regulatory and litigation risk created in the wake of the Seventh Circuit’s July 2026 holding in Franco v. Chobani. The implications of the Court’s opinion extend far beyond whether allulose is a sugar as defined by FDA. Rather, the Court’s decision suggests that food labeling claims founded upon FDA guidance or statements of enforcement discretion, rather than formal rulemaking, are fraught with litigation risk. Consequently, companies should review their labels to identify potentially implicated claims and take necessary states make label changes or reformulate products. Attendees will learn to distinguish between voluntary front-of-pack nutrient content claims and Nutrition Facts panel declarations, both of which are impacted by the Franco court’s reasoning. Attorneys completing this session will be equipped to identify vulnerable labeling and marketing claims and advise clients accordingly.