Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Ensure purchaser had standing to assert claims against Abbott for false labeling, (Jul 30, 2025)

By Justin Marcus Smith, J.D.

Receipts are not a prerequisite to a cognizable consumer class action.

A consumer’s testimony and declaration about her purchases of certain nutrition drinks, over a period of nearly 30 years, established injury-in-fact for Article III standing, held the federal district court in San Francisco, California. The consumer did not need receipts. The defendant-manufacturer of the challenged Ensure® nutrition drinks, Abbott Laboratories (Abbott), did not point to affirmative evidence that the consumer did not buy the challenged products during the proposed class period. The consumer also established a threat of future harm sufficient for standing to pursue injunctive relief because a preponderance of the evidence showed she could not rely on Ensure labeling in the future, despite wanting to buy Ensure. The consumer said she did not understand what the nutrition panel had to say about sugar content. Abbott’s attack on the consumer’s credibility failed (LeGrand v. Abbott Laboratories, No. 3:22-cv-05815-TSH (N.D. Cal. July 28, 2025)).

Background. A California consumer brought a putative class action against Abbott alleging that certain statements on the labels of Ensure® nutrition drinks were false and misleading. The consumer, who said she made over 600 Ensure purchases since the late 1990s, moved to certify a class of persons who bought certain Ensure drinks (challenged products) in California from October 6, 2018, to the time of class notification. Challenged products included: Ensure Original Nutrition Shake; Ensure Plus Nutrition Shake; and Ensure Complete Nutrition Shake. The consumer objected to representations like “Doctor Recommended” and “nutrition shake.”

The consumer said she stopped consuming all the challenged products by 2022 after forming a belief that they were harmful and unhealthy due to added sugars. However, the consumer said she did not understand the meaning of the sugar levels in the challenged products, as indicated on the nutrition facts panels, because she was “not a nutritionist or a medical provider.” In any event, the consumer said she “felt defrauded” because she previously thought the drinks were an adequate meal substitute.

The court said some Walmart receipts the consumer produced during discovery indicated she bought Walmart house-brand Equate drinks, not Ensure. It also appeared the consumer generally did not keep paper receipts. She did not locate any paper or emailed receipts, other than the Walmart Equate receipts, showing purchases of the challenged products.

The consumer filed a second amended complaint asserting, on behalf of the California subclass, violations of the California Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA). Abbott filed a motion to dismiss on the basis that the consumer lacked Article III standing and standing for injunctive relief. The court did not resolve, in this opinion, the consumer’s pending motion for class certification.

Article III standing. The court held federal subject matter jurisdiction attached because the consumer established both Article III standing and standing to pursue injunctive relief. Abbott attacked Article III standing insofar as the consumer had, in Abbott’s words, “no evidence” that she bought the challenged products and could not have suffered any injury. The consumer responded that she presented uncontested evidence showing she was a bona fide purchaser with standing.

The court concluded the consumer’s testimony and declaration together provided “ample evidence” of her Ensure purchases. This was so despite Abbott objections that her only receipts showed she bought Walmart Equate products and that she had otherwise made, in Abbott’s words, “ever-changing” allegations about what she bought.

The court said Abbott repeatedly mischaracterized the consumer’s testimony, but more importantly, Abbot could not show the consumer did not buy Ensure during the relevant class period. Abbott arguments did not address the possibility that the consumer bought ensure but did not have receipts. The court said the consumer “consistently” averred she bought the challenged products monthly during the class period, from a variety of stores, by varying payment methods, including cash, and discarded her receipts. The court provided numerous cites to the consumer’s deposition transcript.

Abbott, in contrast, did not offer any evidence to contradict the consumer’s sworn statements. Nor did Abbott explain why the snapshot of Walmart Equate receipts would be representative of the consumer’s whole buying history. Abbott did not deny that some of the stores the consumer mentioned sold Ensure at relevant times. Cash purchases would not appear in the consumer’s Walmart online history.

The court noted that federal courts have held the opposite of what Abbott was urging about the lack of receipts. Contrary to Abbott’s position, federal courts have held receipts are not a prerequisite to a cognizable consumer class action. Cases Abbott cited were off-point because Abbott did not point to affirmative evidence that the consumer did not buy the challenged products during the class period. There was no complete purchase history here to show the consumer did not buy the challenged products.

The court also signaled it did not appreciate Abbott’s ad hominem attack on the consumer where Abbott had pointed to only a single inconsistency about purchase locations. The consumer otherwise described a nearly thirty-year history as an Ensure consumer. The court said it was “unreasonable to expect her to recall every detail of every purchase made.” The court said Abbott’s attack on the consumer’s credibility failed.

Injunctive standing. The court also found the consumer had standing to seek injunctive relief. Abbott did not show the consumer would have known from product labeling, specifically, the nutrition panel, whether the sugar content was healthy.

Abbott argued there was no threat of future harm because the consumer continued to buy Ensure despite knowing about the alleged dangers of sugar. Abbott said this showed the consumer would continue buying the product regardless of the labeling. The consumer responded she continued buying Ensure for her husband, using his money.

The court agreed with the consumer. Abbott did not point to any evidence that the consumer bought the challenged products for herself after forming a belief that they were unhealthy. Abbott also did not adduce evidence contradicting the consumer’s testimony that she stopped drinking all nutritional shakes in 2022.

Cases Abbott cited did not call for a different result. The plaintiff in one case suggested it did not place significant weight on the challenged representation in that matter. The consumer addressed Abbott’s argument here.

The court was not persuaded by Abbott’s argument that Ensure labeling could not have deceived the consumer. The consumer said she did not understand the nutrition panel about added sugar or how to square the panel information with other statements on Ensure labeling. The court said the context of discussion during the consumer’s deposition was consistent with other representations that she did not know the difference between various amounts of added sugar and did not know the meaning of the level of sugar in Ensure.

The Case is No. 3:22-cv-05815-TSH.

Judge: Hixson, T.

Attorneys: Melanie Rae Monroe (Fitzgerald Monroe Flynn PC) for Condalisa LeGrand. Mark Edward McKane (Kirkland & Ellis LLP) for Abbott Laboratories.

Companies: Abbott Laboratories

Cases: Advertising CaliforniaNews