No Sugarcoating: Deception in a Product Name

Product names can, themselves, be false claims. See, for example, Bayer’s All-Day Energy, Rust-Oleum’s Ultra Cover 2X spray paint, and Comcast’s 10G network. NAD’s most recent name change recommendation can be found in its RxSugar decision. While NAD tread more lightly in RxSugar than in other cases—it recommended that the name be “modified” rather than “discontinued” altogether—NAD’s willingness to rule on product names is alive and well. 

The recommendation in this case stemmed from a challenge filed by the Sugar Association, Inc. (“SAI”). SAI argued that the “RxSugar” name falsely conveyed that the product contains table sugar, i.e., sucrose. In fact, SAI noted, Rx Sugar is made with allulose. (SAI also took issue with the “Rx” in the product name, contending that consumers would understand the product to be “prescription grade”—a theory that NAD rejected off the bat.)

NAD agreed with SAI’s concerns about the “Sugar” in “RxSugar.” It found that the “RxSugar” product name “expressly conveys the message that the products contain sugar.” How so? Notably, both parties pointed to different definitions of “sugar.” Nutrishus maintained that allulose is—technically speaking—a sugar. Nutrishus also pointed out that the FDA permits use of the term “sugar” in connection with substances other than sucrose when a qualifier indicates the sugar’s source. But NAD wasn’t swayed by these technical definitions.

Ultimately, NAD sided with SAI, reasoning that:

• the FDA has mandated that any reference to “sugar” as an ingredient may only refer to sucrose (i.e., table sugar derived from sugar cane or sugar beets), consistent with the public understanding of the word “sugar”;
• even though allulose (the molecule in RxSugar) is technically a sugar, it is well settled that scientific or technical definitions do not necessarily reflect how a term is commonly understood by consumers;
• while the FDA has permitted the use of the term “sugar” in connection with substances other than sucrose when a qualifier indicates the sugar’s source (e.g., “corn sugar,” “milk sugar,” “coconut sugar”), here the context in which RxSugar appears (including the statement of identity that it is an allulose sugar) did not appropriately qualify the product name or prevent the misleading message that RxSugar products contain sugar as many consumers may not be familiar with allulose; and
• the misleading claim was not mitigated by other statements on the back of the packaging which were too far removed (e.g., “Allulose is a plant-based sugar . . .”).

Notably, NAD reached its decision without relying on consumer perception evidence. (While challenger SAI did, indeed, provide a consumer survey, NAD rejected this evidence as insufficiently reliable.)

NAD’s RxSugar decision is an important reminder that while NAD notes its “reluctance” to issue name change recommendations in the absence of consumer surveys, reluctance is not unwillingness. Although Nutrishus seems unbothered by NAD’s decision—its Advertiser’s Statement notes that it “is pleased to include additional information on its label and in its advertising so that there can be no mistake that RxSugar is not what is commonly known as “sugar” (sucrose)”—decisions like these underscore that NAD is not afraid to stand in consumers’ shoes to construe the meaning of a product name.