9th Circuit revives Nestle Boost Glucose Control class action lawsuit

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Update:

• A three-judge 9th Circuit panel reversed its previous decision and will allow a false advertising lawsuit against Nestle over its Boost Glucose Control drink.
• U.S. District Judge Phyllis J. Hamilton in California previously dismissed the case.
• The plaintiffs claim they purchased a drink they otherwise would not have purchased because the Glucose Control name indicates it could be used to control blood sugar, which the panel determined gives the class standing and a real injury.
• Nestle had claimed the Boost Glucose Control is “designed for people with diabetes” and “helps manage blood sugar,” which the panel said would lead a reasonable consumer to believe the drink would help control blood sugar. 

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Nestle BOOST drinks class action lawsuit overview:

• Who: Nestle has been hit with a consumer class action lawsuit.
• What: The consumers say Nestle falsely advertises its BOOST Glucose Control drinks as diabetes prevention and treatment, tricking customers into believing it can prevent and treat diabetes.
• Where: The case is pending in California district court.

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(Dec. 23, 2021)

Nestle’s alleged false advertising of its BOOST Glucose Control drinks as being for diabetes prevention and treatment could lead to “substantial societal harm” if it is unstopped, a new class action alleges.

Bruce Horti, Sandra George and Jeanette Craig filed the lawsuit in California alleging that Nestle USA, Inc. violates federal and state laws with its marketing and labeling of BOOST Glucose Control, BOOST Glucose Control High Protein and BOOST Glucose Control Max nutritional supplement drinks because Nestle “tricks reasonable consumers into believing that it can prevent and treat diabetes.”

The group, who all purchased the drinks thinking they would control their glucose levels as per the labeling, say Nestle violates the Food and Drug Administration’s approval process for products that make disease claims and that the company’s “express representations that the products control glucose are deceptive.”

“Defendant’s representations are reasonably understood by consumers, and were understood by Plaintiffs, to mean that the Products affirmatively control their blood glucose levels: that it will make their glucose level better than prior to drinking it,” they argue in the claim.

However, they say, Nestle’s own clinical trial concluded that the drinks were associated with a lesser rise in glucose levels as compared to one other unidentified nutritional drink. 

“The Products do not control glucose, but rather produce a ‘less bad’ response to glucose compared to one unknown product. That is not the same as controlling glucose,” they assert.

“This is not what a reasonable person would understand from Nestle’s representations that the Products control and manage glucose, and that it is designed specifically for diabetics.”

Drink Labeling ‘False and Deceptive,’ Plaintiffs Claim

The drinks, which are sold online and in stores throughout the United States, have labels stating they help control blood sugar and are designed for people with diabetes, but the plaintiffs argue that labeling is “false and deceptive” and forms a pattern of “unlawful and unfair business practices that harms the public and, if unstopped, could lead to substantial societal harm.”

They are seeking declaratory and injunctive relief and the damages “they sustained as a result of the illegal sales and false and misleading marketing.”

The group wants to represent consumers in New York and California and is suing for violations of state false advertising and unfair competition laws.

Nestle is facing a separate class action lawsuit from consumers who say they tested and found that its Coffee Mate packages are filled with far less product than advertised — more than 40 percent less in one instance.

Plaintiffs Richard Howze, Brenda Walton, Catherine Rothwell and Jenny Carey claim Nestlé prominently advertised a higher number of servings than actually exist in its Coffee Mate products and are suing for violation of New York City Consumer Protection Laws.

Are you a BOOST Glucose Control drinker? Tell us how you feel about this class action in the comments section below!

The group is represented by Alex R. Straus, Nick Suciu, Daniel K. Bryson, J. Hunter Bryson and Zoe Aaron of Milberg Coleman Bryson Phillips Grossman PLLC.

The Nestle BOOST False Ad Class Action Lawsuit is Horti, et al., v. Nestle USA, Inc., Case No. 3:21-cv-09812, in the U.S. District Court For The Northern District Of California.

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