A California federal judge ruled Thursday that a proposed class action against Nestle, involving claims that the company falsely markets its Boost Glucose Control drinks as suitable for preventing and treating diabetes, will proceed. U.S. District Judge Jacqueline Scott Corley denied Nestle’s motion for summary judgment, stating that some issues should go to trial, while noting that one plaintiff, Sandra George, may face dismissal due to continued purchases of the product after the lawsuit was filed.
The class action lawsuit, filed in December 2021, accuses Nestle of misleading consumers with false claims about the effectiveness of its Boost Glucose Control drinks for managing blood sugar levels. The plaintiffs allege violations of California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act.
During the hearing in San Francisco, Judge Corley expressed skepticism over whether George, who continued purchasing the product, could prove injury. However, plaintiffs’ attorney Trenton Kashima emphasized that under California law, consumers may be considered injured if they purchased a product based on misleading advertising, regardless of their continued use. He cited the 2009 In re: Tobacco II Cases decision, which allows for injury claims based on substantial reliance on deceptive advertising.
Another plaintiff, Bruce Horti, testified that he bought the product because he believed it was specifically designed for people with diabetes. Nestle’s attorney, Timothy Loose, challenged this, suggesting that Horti did not recall seeing the product label at the time of purchase. Judge Corley questioned how Horti could have bought the product without noticing its labeling, which states “glucose control.”
While Judge Corley acknowledged inconsistencies in Horti’s testimony, she noted that his statements could be interpreted to indicate that he believed the product would help manage his diabetes.
The lawsuit has drawn attention to the labeling and marketing practices of Nestle’s Boost Glucose Control drinks, with the plaintiffs arguing that the product’s claims mislead consumers about its ability to regulate blood sugar. In December 2023, the Ninth Circuit Court revived the class action, ruling that the plaintiffs had sufficiently alleged that the product’s labeling could deceive a reasonable consumer.
The case, In re: Nestle Boost Nutritional Drink Litigation (case number 3:21-cv-09812), continues to move forward in the U.S. District Court for the Northern District of California. The plaintiffs are represented by Milberg Coleman Bryson Phillips Grossman PLLC, Kaplan Fox & Kilsheimer LLP, Kuzyk Law LLP, and The Rothenberg Law Firm LLP. Nestle is represented by Gibson Dunn & Crutcher LLP.
