Milberg Named to “Legal Lions of the Week” for Nestle Boost Appeal Win

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December 21, 2023

by Brian Eckert

Law360 included Milberg Coleman Bryson Phillips Grossman PLLC (“Milberg”) in its Legal Lions of the Week for reviving a proposed class action lawsuit that alleges Nestle falsely marketed its Boost Glucose Control nutritional drinks as a diabetes treatment.

Bruce Horti, et al v. Nestle Healthcare Nutrition, Inc., originally filed in December 2021, claims that the drinks trick reasonable consumers into believing they can treat diabetes, citing violations of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act. The plaintiffs are represented by Milberg’s Russell Busch, Trenton Kashima, and J. Hunter Bryson.

The district court suggested our claims were simply that the consumers—including in particular diabetics who are unequivocally the target audience of this product—were claiming that this was a miracle drug. That’s not the claim in this lawsuit.

In November 2022, a California federal judge dismissed the case, ruling that Boost labeling makes clear the drinks are not a drug or health supplement. The plaintiffs appealed that decision to the Ninth Circuit, where on December 6 their counsel from Milberg presented arguments to revive the suit.

Those arguments resulted in the court reversing the dismissal and remanding the class action back to district court for further proceedings. A four-page opinion published by the court states that, “The labels specifically reference the disease of diabetes and claim to help consumers ‘control’ glucose and ‘manage’ blood sugar. A reasonable consumer could understand these representations to indicate that the product will have a positive effect on diabetes and blood sugar levels.”

To read the full story and the court’s opinion, visit Law360.

Milberg has also filed a class action lawsuit that similarly claims certain SlimFast products are falsely advertised as a diabetes treatment.