A class action was filed on January 5, 2023, against Glanbia Performance Nutrition, Inc. d/b/a THINK!, alleging that the company deceived consumers by claiming that their protein bars contained no artificial sweeteners despite being sweetened by maltitol syrup.

Maltitol is a sugar alcohol, and the complaint describes how maltitol is produced to demonstrate that the ingredient is artificial; namely, maltose is hydrogenated in the presence of hydrogen gas and a metal catalyst.  Fructose Crystalline

Although FDA does not specifically define “artificial” or “artificial sweetener” (it does, however, define “artificial” in other contexts like artificial flavoring or artificial color), it refers to many of the approved sweeteners as artificial sweeteners. See e.g., 21 CFR 145.131 (Requiring canned figs that are sweetened with saccharin and/or sodium saccharin to be labeled as “artificially sweetened”). The complaint alleges that the hydrogenation reaction chemically changes the natural starting material (maltose), is not a naturally occurring chemical reaction, and therefore renders the maltitol product artificial. We note that while there is no GRAS or food additive regulation for maltitol, it is marketed on the basis of a self-affirmed GRAS position and is referenced in FDA’s regulations as one of the sugar alcohols which qualifies as a noncariogenic carbohydrate sweetener for which certain health claims can be made. 

We will continue to monitor and report on this case and other litigation relating to natural and artificial (free) claims.

Lauren Haas, Nicholas Prust, Frederick Stearns, and Emily Thomas also contributed to this article.

Lisa Alsobrook practices in the area of food and drug law. She advises domestic and foreign clients on regulatory requirements for foods, dietary supplements, cosmetics, and food and drug packaging in jurisdictions around the world. Her main focus is regulatory and compliance matters of the U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture relating to human food, food packaging material, animal feed, food additives and ingredients, and dietary supplements.

Prior to attending law school, Lisa earned a master’s degree in Food Science. She worked as a...

Melvin S. Drozen joined Keller and Heckman in 1987.

Mr. Drozen advises clients on a broad spectrum of FDA, FTC, USDA and EPA (pesticides) regulatory matters, ranging from premarket approval requirements for food additives, dietary supplement ingredients, drugs, and medical devices to advertising and labeling provisions applicable to all of these products. Prior to joining Keller and Heckman, he was an Assistant District Attorney in Brooklyn, N.Y., and then an attorney in the General Counsel's Office of the Food and Drug Administration for seven...

Jill Mahoney advises clients on regulatory requirements for food, animal feed, food additives, dietary supplements, and cosmetics. She counsels clients on labeling and advertising compliance and claims substantiation issues, including nutrition labeling, ingredient declarations, nutrient content claims, structure function claims, and Country of Origin labeling. She assists food, animal feed, and dietary supplement manufacturers in preparing self-determined GRAS positions, GRAS Notifications for Food and Drug Administration (FDA) submissions, New Dietary Ingredient Notification submissions...

Richard (Rick) Mann represents his clients in business and trade association disputes relating to food advertising, promotional and labeling claims, food safety and compliance issues, and general business and corporate law matters.

Rick works extensively with clients in the development of compliant advertising, promotional, and labeling claims and campaigns, and the development of appropriate support for such claims. His regulatory experience allows him to represent his clients in proceedings at the Food and Drug Administration (FDA), the Federal Trade Commission (FTC), the National...

Paula Pastuskovas counsels domestic and international clients on regulatory and compliance matters in food and drug law. She assists clients in obtaining regulatory clearances for food additives and food-contact materials from the U.S. Food and Drug Administration (FDA), Health Canada, and other comparable international agencies. She advises clients on food labeling, ingredient, and substantiation issues. 

As a resident of the firm’s San Francisco office, Paula also advises companies on compliance with California’s state and local laws. This...

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