By Jonathan Stempel
(Reuters) – PepsiCo (NASDAQ:) can be sued for promoting its Gatorade protein bars as good for you even though they have more sugar than protein and more sugar than typical candy bars, a federal judge ruled.
In a decision Wednesday, U.S. District Judge Casey Pitts in San Jose, California, said three self-described fitness enthusiasts leading a proposed class action lawsuit plausibly alleged that PepsiCo's marketing and labeling were misleading.
Neither PepsiCo nor its lawyers immediately responded to requests for comment.
Not all protein bars have the same nutritional benefits.
PepsiCo was accused last September of violating federal and state consumer protection laws by creating a “health halo” around Gatorade bars, including assurances that they “help rebuild muscle,” are “used by professionals” and are “backed by science.”
According to the lawsuit, the bars are actually “fortified junk food” with 29 grams of sugar, including 28 grams of added sugar (more than the American Heart Association's recommended daily limit of 25 grams for women) and only 20 grams of protein.
The plaintiffs claimed that excessive consumption of added sugar is linked to high rates of obesity, diabetes and cardiovascular disease.
They said they would not have bought Gatorade bars or would have paid less if they had understood their nutritional value, and are seeking unspecified damages.
PepsiCo called the cheating allegations “implausible” because it did not market the bars as healthy or low in sugar, especially flavors like Chocolate Chip and Cookies and Cream.
Pitts, however, said reasonable consumers might be unable to easily interpret sugar content on labels and be misled by PepsiCo's “self-proclaimed science-backed claims.”
The judge also agreed that PepsiCo can make claims about protein and health content under federal regulations.
He said, for example, that the U.S. Food and Drug Administration does not consider sugar a “disqualifying ingredient” when making health claims.
Maia Kats, a lawyer for the plaintiffs, said they welcomed the decision and would continue to pursue their claims.
PepsiCo is headquartered in Purchase, New York. Its dozens of brands include Fritos, Lay's, Mountain Dew and Ocean Spray.
The case is McCausland et al v PepsiCo Inc, U.S. District Court, Northern District of California, No. 23-04526.
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