Class action over protein label on lentil chips advanced

(CN) — Letting the chips fall where they may didn’t cut muster with a federal judge Wednesday, as he allowed a consumer class action against Mondelez International over the label on its Enjoy Life lentil chips to move.

Plaintiff Avi Klammer claims Mondelez’s product is labeled as “high protein” and “protein packed” and is neither. Enjoy Life lentil chip varieties include sea salt, garlic and parmesan, dill and sour cream, Thai chili lime and Margherita pizza.

Mondelez moved to dismiss, but in his written order U.S. District Judge Jeffrey White concluded that the “plaintiff has sufficiently alleged that the statements ‘high protein lentils’ and ‘protein-packed’ plausibly imply a level of protein contained in the product and constitute nutrient content claims. The court finds plaintiff has plausibly alleged his claim that the ‘high protein’ and ‘protein-packed’ statements on the product labels are unlawful based on the omission of the corrected amount of protein per serving. The court denies the motion to dismiss on this basis.”

Klammer’s prior complaint, which the court dismissed with leave to amend, centered on what Klammer claimed was deception by Mondelez through misleading “high protein” and “protein packed” statements.

But his time around, White, a George W. Bush appointee, found Klammer “shifted the focus of his complaint to an omission-based claim: that the labeling of the product is unlawful and deceptive based on the omission of the corrected amount of protein in the nutrition facts panel.”

Klammer claims Mondelez left out information in the nutrition facts panel a statement of the corrected amount of protein per serving calculated according to the “Protein Digestibility Corrected Amino Acid Score” required by the Food and Drug Administration.

According to Klammer, he “regularly checks the nutrition facts panel before purchasing any product … and uses that information as a basis of comparison between similar products” and that “he prefers products that provide more of the recommended daily amount of protein.”

White found Klammer has sufficiently shown reliance on the omission of the percent daily value from the nutrition facts panel.

Mondelez argues that the Klammer’s reliance on the omission of the percent daily value from the nutrition panel doesn’t hold weight and is implausible because Klammer claims he read the nutrition facts panel, which clarifies that the product contains only 3 grams of protein per serving.

Mondelez contends Klammer could not have interpreted the nutrition facts panel to mean that the chips were high-protein snacks regardless of whether the nutrition facts panel stated the percent daily value.

But White disagreed in his order.

“Thus, plaintiff’s reliance on the FDA regulations provides an objective benchmark that supports the plausibility of plaintiff’s allegations that the phrase “protein-packed” means that the product is a good source of protein. As such, the court concludes plaintiff has plausibly alleged that “protein-packed” is an actionable misrepresentation,” White wrote.

But Mondelez managed to get some of Klammer's claims tossed.

“However, the court is not persuaded by plaintiff’s allegations that the statements 'better-for-you' and 'one of the best sources of plant-based protein' would mislead a reasonable consumer. Plaintiff has not sufficiently alleged that these claims are actionable misrepresentations rather than puffery, explained how these claims are misleading, or alleged reliance on these statements. Thus, the court dismisses plaintiff’s claims to the extent they are premised on these challenged label statements,” White wrote.

Mondelez did not respond to a request for comment by press time. Neither of the class attorneys, Christopher Aumais of Good/Gustafson/Aumais in Los Angeles and Steffan Keeton of The Keeton Firm in Pittsburgh, responded to requests for comment by press time.

White set a case management conference for Oct. 13, with both parties filing a joint case management statement no later than Oct. 6

Mondelez is a multinational confectionery, food, holding, beverage and snack food company based in Chicago with annual revenue of about $26 billion. It operates in around 160 countries.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit