As discussed in our recent PublishA court in the Northern District of California recently dismissed a lawsuit against Kashi regarding its claims of front-of-package protein content. See Nacarino v. Kashi Co., no. 21-CV-07036-VC, 2022 WL 390815, at *1 (ND Cal. February 9, 2022). This ruling confirmed that food manufacturers can use the “nitrogen method” to calculate protein content claims made outside of the Nutrition Facts label and that the plaintiffs’ theory that manufacturers must adjusting these 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, dismissing with prejudice a virtually identical case against KIND. See Chong v. KIND LLCno. 21-CV-04528-RS, 2022 WL 464149 (ND Cal. February 15, 2022).
Judge Seeborg’s decision in TYPE is particularly notable because, in 2021, he had denied a motion to dismiss an almost identical action (filed by the same plaintiffs’ attorney) in a case titled Minor v. Baker Mills, Inc., no. 20-CV-02901-RS, 2021 WL 4522290 (ND Cal. May 20, 2021). the TYPE plaintiffs therefore argued that the court should also deny KIND’s motion to dismiss. However, Judge Seeborg rejected this argument, finding that it had “now become obvious. . . this Minor was badly decided. the TYPE decision confirms that[b]Because the plaintiffs attempt to use state law to impose labeling requirements that go beyond what 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, finding that those claims were also preempted.
Than two courts of ND Cal. have now determined that the plaintiffs’ theory is wrong in law may bode well for other food manufacturers who are still defending a handful of similar lawsuits in this and other venues.