Courts in the Northern District of California continue to turn away lawsuits alleging that food and beverage companies must adjust protein content claims to account for protein digestibility.  In Brown v. Nature’s Path Foods, Inc., 2022 WL 717816 (N.D. Cal. Mar. 10, 2022), Judge Gilliam observed that recent FDA guidance reaffirms that companies may use the “nitrogen method” for protein content claims and that the agency’s “regulations do not require protein content claims to adjust for digestibility or to be calculated using amino acid contest testing.”  Because plaintiff was seeking to impose requirements under state law that the FDA does not, her claims were preempted.  The following month, Judge Chhabria granted a motion to dismiss in Brown v. Kellogg Company, 2022 WL 983268 (N.D. Cal. Apr. 1, 2022), concluding that those plaintiffs did not raise “any basis on which to distinguish the claims in [the] case” from another he had recently dismissed, as discussed here.  The next month, Judge Orrick reached the same conclusion in Brown v. Van’s Int’l Foods, Inc., 2022 WL 1471454 (N.D. Cal. May 10, 2022), concluding that “FDA regulations permit protein content claims to be calculated via the nitrogen method.”  This brought to five the number of recent decisions squarely rejecting plaintiffs’ theory that manufacturers cannot use the nitrogen method for protein content claims, including earlier decisions discussed here and here.

These cases often assert another theory of liability: that manufacturers are required by FDA regulations to include a “percent daily value” figure for protein in the Nutrition Facts Label (NFL) if they make a protein content claim elsewhere on the package, and that failing to include that “%DV” can be false or misleading under state law.  The courts have not yet adopted a uniform approach to these claims.  In Chong v. Kind LLC, 2022 WL 464149 (N.D. Cal. Feb. 15, 2022), the court held that such claims were subject to implied preemption under Buckman v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), because the claims were “ultimately . . . dependent on the existence of violations of federal law.”  In other words, in the court’s view plaintiff’s claim under California law existed solely by virtue of FDA requirements.  Judge Orrick disagreed with this reasoning in Van’s, noting he “did not read Buckman or its progeny as sweeping so broadly” and concluding plaintiff was “suing for conduct that violates the FDCA, but not because the conduct violates the FDCA.”  Even though he found Buckman preemption did not apply, Judge Orrick nevertheless dismissed this theory in light of plaintiff’s failure to “plausibly allege that she was deceived by the omission of digestibility-adjusted protein figure from the Nutrition Facts panel.”  Judge Gilliam in Nature’s Path likewise dismissed this theory based on plaintiffs’ failure to plead reliance on the NFL, and thus expressly declined to reach the Buckman question.            

Taken as a whole, these five cases suggest that claims challenging a manufacturer’s use of the nitrogen method for protein content claims are unlikely to gain much traction in the Northern District of California.  However, a consensus approach has not yet emerged for claims challenging a manufacturer’s failure to include a “%DV” in the NFL—although the recent decisions certainly point to vulnerabilities in this theory that a savvy defendant should seek to develop.  More developments in this area are likely, as plaintiffs in three of the five cases (Kashi, KIND, and Kellogg) have now appealed the dismissal of their claims to the Ninth Circuit.