In re: Nestle Boost Nutritional Drink Litigation

Background

The plaintiffs brought a proposed class action against Nestlé HealthCare Nutrition, Inc., concerning Boost Glucose Control and Boost Glucose Control High Protein. They allege that the products’ labels deceptively represented that the products control glucose or are designed for people with diabetes. The challenged statements included “designed for people with diabetes,” the product name “Boost Glucose Control,” and “helps manage blood sugar,” followed by a back-label statement that the product was clinically shown to produce a lower blood-sugar response than a standard nutritional drink in people with type 2 diabetes and was not a substitute for medication.

The operative complaint asserts claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. Steven Owen also asserts a New Jersey Consumer Fraud Act claim on behalf of a proposed nationwide class or, alternatively, a proposed New Jersey subclass. The plaintiffs additionally allege unjust enrichment and breach of express and implied warranties. The three named plaintiffs are Bruce Horti, Sandra George, and Steven Owen.

The court previously assigned to the case dismissed the action twice, the second time with prejudice. The Ninth Circuit reversed, holding that the plaintiffs had adequately alleged an economic injury and that a reasonable consumer could understand the challenged representations to indicate a positive effect on diabetes and blood-sugar levels. The plaintiffs then filed the operative consolidated complaint.

Summary-judgment standard and evidentiary objections

The court applied Federal Rule of Civil Procedure 56. Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. The court must view the evidence and reasonable inferences in favor of the nonmoving party, while leaving credibility determinations and weighing of evidence to the factfinder.

The court declined to consider the plaintiffs’ objection to one internet-archive exhibit because the court did not rely on it. The court overruled the plaintiffs’ objections to exhibits concerning clinical trials, explaining that evidence at the summary-judgment stage need not yet be presented in a form admissible at trial if its contents could later be supported through admissible testimony or other evidence.

Sandra George

For the California consumer-protection claims, statutory standing requires an economic injury caused by the alleged unfair business practice or false advertising. The court explained that a consumer challenging a product label can satisfy the causation requirement by showing reliance on the misrepresentation and that the consumer would not have bought the product without it.

The court found it undisputed that George continued buying Boost Glucose Control after filing the lawsuit and after learning about the alleged deceptive statements. She purchased and consumed the product through approximately February 2024, later seeking a lower-priced product after retiring. The court held that her continued purchases demonstrated as a matter of law that she either did not rely on the challenged statements or did not consider them material, and therefore suffered no injury for purposes of these claims.

The court granted summary judgment in favor of Nestlé as to George’s claims.

Bruce Horti

Nestlé argued that Horti could not prove he saw the challenged labels or was deceived by them. The court found a genuine dispute of fact about whether Horti saw the product name and the statement “designed for people with diabetes.” Horti testified that he thought “glucose control” meant the product was supposed to control his glucose and that a product for diabetics was probably better for him.

The court also found conflicting evidence about what Horti expected the product to do. Although some evidence could support Nestlé’s position that Horti expected only a lower or more gradual rise in blood sugar, other testimony supported an inference that he expected the product to have an additional effect, such as improving or controlling his blood sugar. The court was required to draw reasonable inferences in the plaintiffs’ favor at this stage.

The court rejected Nestlé’s argument that the other label information, including the disclosed sugar content and the back-label explanation, made it impossible as a matter of law for the label to be misleading. The court held that a factfinder could determine that Horti interpreted the product name and “designed for people with diabetes” statement to promise more than a low-sugar drink that produces a lower blood-sugar rise than Boost Original.

The court denied summary judgment as to Horti. Because the record did not show that Horti saw or relied on “helps manage blood sugar” when he bought the product, his challenge is limited to “Boost Glucose Control” and “designed for people with diabetes.”

Steven Owen

Owen testified that before buying the product he looked only at its name, not the nutrition facts, ingredient list, or other label information. The court found no genuine dispute about whether he saw the other challenged statements. His claim is therefore limited to the product name, “Boost Glucose Control.”

Nestlé argued that Owen could not show deception because he viewed the product name without considering other label information, including the product’s sugar content and the explanation that it produced a lower blood-sugar response than a standard nutritional drink. The court did not decide that issue as a matter of law because Nestlé’s motion focused on the named plaintiffs’ individual understanding and whether they were deceived, rather than arguing that the label could not be misleading when considered as a whole.

Owen testified that he understood the product would control blood-glucose levels by keeping them the same and believed Nestlé owed him a refund because the drink did not control sugar as represented. The court held that a reasonable factfinder could find that Owen was deceived. It denied summary judgment as to Owen, while limiting his challenge to the product name.

Injunctive relief

Nestlé moved for summary judgment on the plaintiffs’ claims for injunctive relief because all three plaintiffs admitted they did not plan to buy Boost again. The plaintiffs conceded judgment on those claims. The court granted Nestlé’s motion for summary judgment as to the plaintiffs’ request for injunctive relief.

Sealing motion and disposition

The court granted the motion to seal Exhibits B and D to the declaration of Trenton Kashima and corresponding information in the plaintiffs’ opposition. The materials contain marketing and advertising strategies, internal testing procedures, and processes used to substantiate Nestlé’s claims. The court found compelling reasons for sealing them because disclosure could cause competitive harm.

The court granted in part and denied in part Nestlé’s motion for summary judgment. It granted summary judgment as to George’s claims and the claims for injunctive relief. It denied summary judgment as to Horti and Owen, subject to the limits on which label representations they may challenge. The court also granted the sealing motion and set a further case-management conference for May 27, 2025.