(Reuters) – Food labeling litigation can be deliciously easy to mock.
Do any consumers really buy strawberry Pop-Tarts because they think they’re loaded with antioxidants or vitamin C — and feel hoodwinked because they’re not? Do they really expect a box of Cap’n Crunch’s Crunch Berries to be brimming with real, um, crunch berries?
Such claims usually get scraped into the trash by judges, who recognize that most consumers are not in fact idiots.
But a bumper crop of new suits targeting the way dozens of popular food products tout their supposedly high protein content cannot be so easily tossed aside. Because while most consumers aren’t crunch berry-believing fools, they also aren’t dieticians versed in the intricacies of human protein digestion.
A who’s-who of food companies have been hit with class actions over protein content labeling in San Francisco federal court since 2021, including Kellogg Co, The J.M. Smucker Co, Kashi Co, Kind LLC, Perfect Bar, Nature’s Path Foods Inc, Van’s International Foods Inc and a half-dozen others. The companies, which did not immediately respond to requests for comment, in court papers have all denied wrongdoing.
Plaintiffs lawyers allege that “increasingly health conscious consumers” seeking foods high in protein are being misled, according to one of the (very similar) complaints filed by Gutride Safier, a 10-lawyer San Francisco firm founded by Harvard and Yale law school alums and whose lawyers did not respond to a request for comment.
Aiming to attract such shoppers, they say some food makers splash bold text on the front of their packaging for products such as cereal, snack bars, frozen waffles or bread, with claims like “Contains 10g protein!”
Consumers “reasonably expect that each product will actually provide the amount of protein per serving claimed on the front of the product package,” the Gutride lawyers argue.
It’s not that the products at issue don’t contain the stated amount of protein. Technically, they do. But as the lawsuits stress, not all protein is created equal.
Your body can use all the protein found in sources like eggs or whole milk, per the (inelegantly named) “Protein Digestibility Corrected Amino Acid Score” adopted by the U.S. Food and Drug Administration.
But other proteins, especially those that are plant-based like wheat and oats, are deficient in one or more of the nine amino acids essential for human protein synthesis, according to the plaintiffs’ lawyers.
So while you might think you’re getting 10 grams of protein from, say, a frozen waffle, your body might only be able to use five. The rest will degrade into waste.
Does that make the protein content claims misleading? Perhaps. But as Covington & Burling partner Cortlin Lannin, who has been following the litigation closely told me, that “original theory got no traction” before multiple Northern District of California judges. Across the board, he said, they’ve rejected claims that food makers should have to adjust protein content for digestibility.
As lawyers for Van’s, which is part of Sara Lee Frozen Bakery and makes waffles and pancakes, argued in court papers, “detailed federal regulations” are in place that lay out how companies are allowed to calculate and declare the protein content of their products.
Those regulations “permit the precise claim Plaintiff challenges” and don’t require adjusting downward, Van’s lawyers from Perkins Coie said.
The company and its counsel did not respond to requests for comment.
With no discernible hand-wringing, Judge William Orrick in May dismissed that claim against Van’s with prejudice, ruling that the plaintiffs’ theory was preempted by the Food, Drug, and Cosmetic Act.
But Orrick kept alive another, newer claim.
Here’s the gist of it: Let’s say you’re drawn to a product because you see on the front of the box that it contains “10g” of protein. And then you look at the nutrition facts panel on the back, which confirms the 10 grams but doesn’t tell you what that equals as a percentage of the daily value for protein.
Consider plaintiff Molly Brown. According to the complaint against Van’s, she shops carefully because “as a vegan and a mom to a vegetarian child, she needs to make sure they all receive their daily recommended protein, which can be difficult to do.”
Brown alleges she relied on Van’s representation that its waffles provided 10 grams of protein. “Had she seen that the product provided only 10% (or less) of the daily value for protein — i.e., only approximately 5 grams or less corrected amount of protein per serving — she would not have purchased the product or, at a minimum would have paid less for it,” the amended complaint against Van’s alleges.
To back up the argument, the Gutride lawyers claim that an FDA regulation stipulates if packaging contains statements about protein outside the nutrition fact panel — like on the front of the box — “then the manufacturer must include the usable amount of protein per serving, expressed as a percent of daily value,” in the panel. It’s not enough only to say 10 g.
To Lannin, the allegations are “indicative of a broader trend. Plaintiffs lawyers are really scouring esoteric regulations for what they would call compliance violations – regulations no one ever really paid attention to.”
Orrick in August was persuaded to let the case against Van’s proceed, setting a tentative trial date for 2025. A magistrate judge in October followed suit, declining on the same grounds to dismiss a case against natural pancake mix company Birch Benders LLC.
The company did not respond to a request for comment.
To Nicole Ozeran, an associate in Morrison & Foerster’s class actions and mass torts group who has also been following the litigation but is not involved in the cases, it “feels like plaintiffs lawyers are walking up and down grocery store aisles” looking for targets.
Still, as she noted, it’s one thing for plaintiffs to make it past a motion to dismiss but quite another to win class certification, let alone a trial.
“I question whether or not the plaintiffs’ theory aligns with the regulatory requirements” she said. “I’m curious to see how the courts will rule.”
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