Courts in the Northern District of California continue to dismiss lawsuits alleging 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 (ND Cal. Mar. 10, 2022), Justice Gilliam observed that recent FDA guidance reaffirms that companies can use the “nitrogen method” for protein content claims and that “agency regulations do not require protein content claims to adjust”. for digestibility or to be calculated using amino acid contest tests. Because the plaintiff was seeking to impose requirements under state law that the FDA does not, her claims were anticipated. The following month, Judge Chhabria granted a motion to dismiss Brown v. Kellogg Company2022 WL 983268 (ND Cal. Apr. 1, 2022), finding that these plaintiffs have raised “no basis on which to distinguish the claims in [the] case” of another he had recently dismissed, as discussed here. The following month, Justice Orrick came to the same conclusion in Brown vs. Van’s Int’l Foods, Inc., 2022 WL 1471454 (ND Cal. 2022 May 10), concluding that “FDA regulations permit protein content claims to be calculated via the nitrogen method”. This brought to five the number of recent decisions outright rejecting plaintiffs’ theory that manufacturers cannot use the nitrogen method for protein content claims, including the earlier decisions discussed here and here.
These cases often affirm another theory of liability: that manufacturers are required by FDA regulations to include a “percentage of daily value” figure for protein in the Nutrition Facts Label (NFL)s. ‘they make a protein content claim elsewhere on the package, and that failure to include that “%DV” may be false or misleading under state law. The courts have yet to adopt a uniform approach to these claims. In Chong vs. Kind LLC2022 WL 464149 (ND Cal. Feb. 15, 2022), the court held that these claims were subject to an implied preemption under Buckman v. Plaintiffs’ Legal Committee, 531 US 341 (2001), because the claims were “ultimately. . . depends on the existence of violations of federal law. In other words, in the opinion of the court, plaintiff’s claim under California law existed solely under the requirements of the FDA. Justice Orrick disagreed with this reasoning in Van’snoting that he “did not read buckman or his offspring as sweeping so widely” and the plaintiff concluding “was suing for conduct that violates the FDCA, but not because the conduct violates the FDCA. Although he found buckman preemption did not apply, Judge Orrick nevertheless rejected this theory in light of the fact that the plaintiff had not “plausibly alleged that she had been deceived by the omission of the protein figure adjusted to the digestibility of the Nutrition Facts panel”. Judge Gilliam in nature path also rejected this theory based on plaintiffs’ inability to litigate the remedy to the NFL, and therefore expressly declined to reach the buckman question.
Taken together, 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 yet to emerge for claims challenging a manufacturer’s failure to include a “%DV” in the NFL, though recent rulings certainly point to vulnerabilities in this theory that a savvy defendant should seek to develop. Further developments in this area are likely, as the plaintiffs in three of the five cases (kashi, KINDLYand Kellogg) have now appealed the denial of their claims to the Ninth Circuit.