Canadian cereal maker’s packaging could deceive consumers, California judge rules

OAKLAND, Calif. (CN) — A federal judge on Thursday advanced class claims against Nature’s Path of misleading protein content on the Canadian organic food company’s cereal packaging.

Plaintiff Ian Miller claimed that on multiple occasions he purchased Nature’s Path’s Heritage Flakes, Flax Plus Raisin Bran, Flax Plus Multibran Flakes, and the Heritage Original Crunch cereals from retail stores in California.

Miller made his purchases after reading and relying on the products’ front label claims that they contained 5 grams of protein per serving. Miller claims these statements are misleading because Nature’s Path’s products do not contain 5 grams of protein that the human body can actually use. He claims he would not have purchased the products had he known that was the case.

His class action claims include violations of California’s Consumers Legal Remedies Act, California’s False Advertising Law, common law fraud, deceit and/or misrepresentation, California’s Unfair Competition Law, and unjust enrichment.

Nature’s Path moved to dismiss the suit, arguing that no reasonable consumer would be fooled by the claims on its products’ packaging. The company argued the products contain plant-based protein, which are “incomplete” proteins, and a reasonable consumer would know that not all of the protein from the product could be absorbed and used by humans.

U.S. District Judge Jon Tigar, a Barack Obama appointee, was unconvinced.

“It is not clear, as Nature’s Path suggests, that most consumers are aware of the usability of various proteins such that stating the product is made of wheats and oats would alert them to the fact not all the protein is usable,” Tigar wrote in a 15-page opinion, noting that Miller is not an expert and relied on the packaging when purchasing the cereal.

Nature’s Path also contended Miller did not suffer any injury and was merely attempting to get Nature’s Path to comply with regulatory law, and that Miller could not obtain any injunctive relief because he now knows about the deception and is not at risk for further harm.

“Miller has pleaded a particularized allegation of harm: he spent money on Nature’s Path’s products that, absent their omissions, he otherwise would not have spent. This is a concrete injury sufficient to confer standing,” Tigar said.

Nature’s Path arguments about injunctive relief “ignore well-settled law,” Tigar wrote, because the Ninth Circuit has recognized that a previously deceived consumer can still have standing to sue even after they learn of the deception.

Nature’s Path then moved to preemption, arguing Miller’s claims are preempted by the Food, Drug and Cosmetics Act.

FDA regulations specifically permit the total amount of protein by weight in grams in food products to be calculated based on 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 nutrition facts label of a product.

Accordingly, Nature’s Path argued Miller sought to impose labeling requirements that are not identical to the requirements of the Food, Drug and Cosmetics Act and are therefore preempted

“Miller alleges that Nature’s Path’s protein content claims are misleading since they do not include the quality adjusted percentage… This claim is not expressly preempted because it is based on an alleged violation of FDA regulations and therefore ‘requires nothing more or less than what the FDCA already requires,’” Tigar wrote.

Finally, Nature’s Path moved to strike the class claims, arguing that Miller lacks standing to bring claims under the laws of states in which he does not reside and was not injured.

Tigar denied Nature Path’s motion to strike, writing that it was inappropriate at this stage of the litigation.

The parties’ attorneys did not respond to requests for comment on the ruling by press time.