As discussed in our recent post, a court in the Northern District of California recently dismissed a complaint against Kashi involving its front-of-pack protein content claims.  See Nacarino v. Kashi Co., No. 21-CV-07036-VC, 2022 WL 390815, at *1 (N.D. Cal. Feb. 9, 2022).  That decision confirmed that food manufacturers may use the “nitrogen method” to calculate protein content claims made outside the Nutrition Facts Label and that plaintiffs’ theory that manufacturers must adjust such claims to reflect protein digestibility is preempted.  Judge Seeborg, also of the Northern District of California, followed in the footsteps of the Kashi court on February 15 by dismissing with prejudice a virtually identical case against KIND.  See Chong v. KIND LLC, No. 21-CV-04528-RS, 2022 WL 464149 (N.D. Cal. Feb. 15, 2022).

Judge Seeborg’s decision in KIND is particularly noteworthy as, in 2021, he had denied a motion to dismiss a nearly identical action (filed by the same plaintiffs’ counsel) in a case captioned Minor v. Baker Mills, Inc., No. 20-CV-02901-RS, 2021 WL 4522290 (N.D. Cal. May 20, 2021).  The KIND plaintiffs thus argued that the court should likewise deny KIND’s motion to dismiss.  Judge Seeborg rejected that argument, however, reasoning that it has “now become apparent . . . that Minor was incorrectly decided.”  The KIND decision confirms that “[b]ecause plaintiffs are attempting to use state law to impose labeling requirements that go beyond what the FDA regulations require, their claims are preempted and the motion to dismiss must be granted.”  The court also dismissed with prejudice plaintiffs’ claims challenging the lack of a % Daily Value reference on certain product labels, holding that those claims were likewise preempted.

That two courts in N.D. Cal. have now determined that plaintiffs’ theory is flawed as a matter of law may bode well for other food manufacturers that are still defending a handful of similar lawsuits in this and other venues.