What DOJ's Last-Minute Franco v. Chobani Citation Means for the Retatrutide Case
TL;DR: Days before retatrutide's 7th Circuit hearing, DOJ cited Franco v. Chobani, a new FDA-deference case — it's unclear which side it helps.
What's New: A Late Citation Most Coverage of the Hearing Missed
We covered the 24 September 2026 Seventh Circuit oral argument in Eli Lilly and Company v. Kennedy — the appeal over whether retatrutide should be classified as a biologic or a conventional drug — in our hearing-day report, which noted the panel took the case under advisement without ruling from the bench. That report also flagged that detailed public accounts of the argument itself remained thin. One procedural detail from the days immediately before the hearing is worth covering on its own: in the days before argument, the Department of Justice, representing the FDA, filed a Rule 28(j) letter citing a newly decided case, Franco v. Chobani.[1]
This kind of filing rarely gets its own coverage, but it's a genuine new data point in an otherwise quiet stretch of the case: a signal of which legal argument DOJ wanted freshest in the panel's mind heading into argument. Here's what the letter is, what the case it cites actually decided, and why it's not straightforward to say which side it helps.
What Is a Rule 28(j) Letter?
Federal Rule of Appellate Procedure 28(j) lets a party notify a court of appeals about “pertinent and significant authorities” that come to light after briefing is complete but before (or even after) oral argument. It is deliberately narrow: a short letter, typically just the citation and a sentence or two on its bearing on the case, without reopening the merits briefing. Parties use it when a relevant appellate decision lands too late to work into the original briefs but is squarely on point — exactly the situation created when the Seventh Circuit itself decided a new case on FDA deference roughly two months before the retatrutide argument.
What Did Franco v. Chobani Actually Decide?
The case: a yogurt label, not a drug
Franco v. Chobani, LLC (No. 25-2087) was a consumer class action alleging Chobani's “Zero Sugar” yogurt, which contains the sweetener allulose, was deceptively labelled given each serving contains several grams of the substance. A district court dismissed the case, deferring to non-binding FDA guidance that had excluded allulose from the regulatory definition of “total sugars.”[2]
The reversal: text over guidance
On appeal, the FDA itself disclaimed the very guidance the district court had relied on. The Seventh Circuit, deciding on 27 July 2026, reversed the dismissal, holding that the regulation's own text unambiguously covered allulose as a sugar regardless of what the agency's prior guidance had said — and regardless of the agency's own subsequent, litigation-driven change of position.[2][3]
Put simply: Franco is a case where the Seventh Circuit declined to let an agency's own guidance — even the agency's own stated interpretation — override what the panel read as clear regulatory text.
Why Isn't It Obvious Which Side Franco Helps?
On its face, a precedent where the Seventh Circuit overrode the FDA's own guidance sounds like it should favour Eli Lilly, which is asking the same court to look past the FDA's technical “analogous to a protein” determination and rule that the regulation's text (or Lilly's amino-acid count) settles the question outright. But it is DOJ, representing the FDA, that filed the letter — not Lilly — which suggests the agency sees something in Franco that supports its own position instead.
The honest answer: we don't fully know yet. A 28(j) letter's docket text is brief by design and doesn't lay out full argument. It's possible DOJ's angle is that Franco shows courts resolve these questions by close textual reading rather than by simply adopting whichever side's characterisation of the science sounds more persuasive — which would cut against Lilly's request that the court declare retatrutide “analogous to a protein” as a matter of law without further agency process. No detailed public account of how either party's counsel actually invoked Franco at the 24 September argument itself had been published as of this writing.
Where Does the Underlying Case Stand?
Nothing about the Franco citation changes the status we reported after the hearing: the panel heard argument on 24 September and reserved its decision, as federal appellate panels always do, and a written opinion is still expected weeks to several months out. The FDA's separate, agency-level remand analysis of whether retatrutide is “analogous to a protein” continues in parallel. For the full procedural history and the hearing itself, see our hearing-day report and our earlier classification-fight background.
Does This Affect UK Research-Reagent Supply?
No. This is a procedural detail inside US federal litigation over which American regulatory pathway a licensed pharmaceutical company must use to seek marketing approval for an investigational drug. It has no bearing on the UK regulatory position for research reagents, which sits under the Human Medicines Regulations 2012 and MHRA guidance — see our guide on whether research peptides are legal in the UK. Retatrutide remains unlicensed for human use everywhere, regardless of how this citation or the underlying appeal resolve.
Retatrutide is supplied as a research reagent only. It is not a medicine and has not been evaluated by the MHRA or FDA. Not for human or veterinary use. See our Research Use Policy and MHRA Statement.
References
- Boesen & Snow Law. Retatrutide, blah, blah…BLA? Case commentary on the Seventh Circuit appeal, September 2026. boesensnowlaw.com
- Justia. Franco v. Chobani, LLC, No. 25-2087 (7th Cir. 2026), decided 27 July 2026. law.justia.com
- Washington Legal Foundation. Guidance for Thee, But Not for Me: The FDA's Bait-and-Switch in Franco v. Chobani. 30 July 2026. wlf.org
- United States Court of Appeals for the Seventh Circuit. Public oral argument calendar, Eli Lilly and Company v. Kennedy. 24 September 2026. ca7.uscourts.gov
- Velox Peptides. See our 24 September hearing-day report for what happened at argument and the ruling timeline.
Frequently Asked Questions
What is a Rule 28(j) letter?
A Rule 28(j) letter is a short supplemental-authority notice a party can file with a federal appeals court after briefing has closed, to flag a newly decided case that is directly relevant to the pending appeal. It is not a new brief — it typically states the citation and a sentence or two on its bearing on the case, without reopening argument on the merits.
What did Franco v. Chobani decide?
Franco v. Chobani, LLC (No. 25-2087), decided by the Seventh Circuit on 27 July 2026, was a consumer class action alleging Chobani's "Zero Sugar" yogurt, which contains the sweetener allulose, was deceptively labelled. A district court had dismissed the case by deferring to non-binding FDA guidance that excluded allulose from "total sugars." The Seventh Circuit reversed, holding the regulation's own text controlled the question, even after the FDA itself disclaimed the guidance the lower court had relied on.
Why did DOJ, representing the FDA, cite a case that went against an FDA position?
That is the puzzle this article covers. Franco does show a court will look past an agency's stated guidance to the regulation's own text — which could support DOJ's argument that a plain-text technical question like retatrutide's "analogous to a protein" test does not need a court to simply defer to Lilly's reading either. But the letter's brief docket entry does not itself explain DOJ's intended use, and no detailed public account of how either side addressed it at the 24 September oral argument had been published as of this article.
Does this citation change the retatrutide case's timeline or outcome?
Not by itself. A Rule 28(j) letter supplements the record available to the panel; it does not accelerate deliberation or guarantee any particular outcome. The Seventh Circuit heard argument on 24 September 2026 and reserved its decision, as we covered separately; a written opinion is still expected weeks to several months out.
Does this litigation affect UK research-reagent supply of retatrutide?
No. This is procedural detail inside US federal litigation over which American regulatory pathway a licensed pharmaceutical company must use for an investigational drug. It has no bearing on the UK regulatory position for research reagents under the Human Medicines Regulations 2012. Velox Peptides supplies retatrutide as an HPLC-verified in vitro research reagent only, a status unrelated to this litigation. Order for research →