Top Food and Drug Cases, 2023, & Cases to Watch, 2024

Food and Drug Law Institute, 2024

For the 2024 edition of Top Food and Drug Cases, a publication of the Food and Drug Law Institute (FDLI), Analysis Group Principal Rene Befurt, Vice President Anne Cai, and Senior Analysts Sean Flanagan and Tom Rahr examined Horti v. Nestle, a product labeling consumer class action lawsuit. The plaintiffs contended that the packaging and in-store placement of Nestle’s BOOST Glucose Control protein drink misleadingly represented that the drinks were designed for people with diabetes to control and manage blood glucose. The US District Court for the Northern District of California dismissed the complaint, but the US Court of Appeals for the Ninth Circuit reversed the lower court’s dismissal, noting that the product’s placement in stores near legitimate diabetes treatments may create a “contextual inference” that the product may have a positive effect on the regulation of blood glucose.

In discussing the implications of the rulings, the authors explore the importance of considering marketplace context when assessing “reasonable” consumers’ interpretations of packaging claims. They also discuss whether contextual inferences can be different for relevant target consumers than for the general consuming public. The authors conclude by noting that “survey research may help the courts to sharpen their view of the reasonable consumer by eliciting to what extent, if any, actual and prospective purchasers of the at-issue products interpret the at-issue claims in the marketplace context as alleged, and if the alleged misrepresentations are material to consumers’ purchase decisions.”

Ms. Cai provided an overview of this case during the “Top Cases in Food and Drug Law” panel at the 2024 FDLI Annual Conference.

Read the article

Shared with the permission of the FDLI.


Befurt R, Cai A, Flanagan S, Rahr T