FDA

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…

Continue Reading More Courts in N.D. Cal. Uphold Industry-Standard Method for Calculating Protein Content Claims

Last week, Dryers defeated two putative class actions filed by the same law firm, Spencer Sheehan, alleging that representations on the packaging of Häagen-Dazs chocolate-dipped ice cream bars misled consumers about the product’s chocolate coating.  In both cases, plaintiffs alleged that the representation that the ice cream is dipped in “rich milk chocolate” is false, since the addition of vegetable and coconut oil to the chocolate coating “fundamentally changes the nature of the bar’s coating.”  According to plaintiffs, chocolate is “a food prepared from ground roasted cacao beans,” that are ground to produce cocoa mass or chocolate liquor and then combined with dairy ingredients, sweetener, and flavorings—not vegetable oil.  Plaintiffs also pointed to FDA regulations defining chocolate and related labeling requirements to argue that food companies may not market their products as chocolate when they are mixed with non-cacao plant oils. 

Dryers filed motions to dismiss both cases, and the Southern District of New York and the Southern District of Illinois granted the motions, but on different grounds.  While S.D.N.Y. held that no reasonable consumer would be misled by the product packaging, S.D. Ill. concluded that the Federal Food Drug and Cosmetic Act preempted the state claims at issue.  Neither court found the plaintiffs’ appeals to FDA regulations availing. Continue Reading Dryers Wins Back-to-Back Dismissals in Consumer Deception Lawsuits

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).Continue Reading Second Court Upholds Industry-Standard Method for Calculating Front-of-Pack Protein Content Claims

Background

Many food companies now make quantitative protein content claims on the front of pack or elsewhere on their product labels outside the Nutrition Facts Label (NFL), such as the example from a recent case below:  

FDA regulations direct manufacturers to use the “nitrogen method”—which generally calculates protein content by multiplying the nitrogen content of the food by 6.25—when calculating the amount of protein reported inside the NFL.  Companies have generally used the same method for protein claims made elsewhere on the label, i.e., outside the NFL.Continue Reading A Closer Look: Court Upholds Industry-Standard Method for Calculating Front-of-Pack Protein Content Claims

Last week, in Vitort v. The Kroger Co., No. 3:20-cv-01317-AC, 2022 U.S. Dist. LEXIS 18291 (D. Or. Feb. 1, 2022), the District of Oregon dismissed a putative class action claiming that a blackberry spreadable fruit product labeled “Just Fruit” misleads consumers into believing it contains only blackberry fruit, when its primary ingredient is fruit syrup with significant added sugars and other additives.  Defendants argued the product’s label is accurate because all of its ingredients—including the sugar—are derived from fruit.Continue Reading “Just Fruit” Does Not Mean Only Unprocessed Fruit