(CN) — A federal judge on Wednesday denied Nature’s Path Foods' bid to dodge a 2021 class action brought by consumers who claim they were deceived into buying the company's breakfast and snack products based on the amount of protein advertised on its packaging.
U.S. District Judge Haywood S. Gilliam Jr. in the Northern District of California in Oakland rejected Nature’s arguments for dismissal regarding standing, implied preemption and lack of plausible deception.
In the class action filed in July 2021, California residents Molly Brown, Parsa Miller and Lauren Morgan claim Nature’s Path products do not deliver the amount of protein touted on its labels.
“For example, defendant labels its Hemp Hearts Granola as providing ‘10g PROTEIN,’ but amino acid content testing establishes that defendant’s Hemp Hearts Granola, at best, has 7.87 grams of protein,” Brown says in the complaint, adding: “To compound the deception, below, in a small font that is barely legible to consumers, the Hemp Hearts Granola packaging provides that the ‘10g protein’ is 'per serving with milk.'”
Gilliam threw out the class member’s initial front label claim in the company’s first motion to dismiss, prompting a first and then second amended complaint by August 2022. This time around, the trio narrowed their claims to violations of the Consumers Legal Remedies Acts, false advertising, fraud, unlawful trade practices and unjust enrichment, but have kept much of their accusations in line with their initial complaint.
“Consumers are increasingly health conscious and, as a result, many consumers seek foods high in protein,” the plaintiffs say in their complaint. “To capitalize on this trend, defendant prominently labels its Nature’s Path products as providing specific amounts of protein per serving depending on the product, such as ‘10g protein’ on the front label of its Hemp Hearts Granola.”
According to the plaintiffs, the FDA-required method for measuring protein quality is called the “Protein Digestibility Corrected Amino Acid Score,” which shows how much protein in a product is available to support human nutritional requirements. For instance, a score of .5 means that only half of the protein in a product is actually available.
“Because consumers are generally unaware about the usability of various proteins, and may even be unaware of the total amount of usable protein they should ingest each day, the FDA prohibits manufacturers from advertising or promoting their products with a protein claim unless they have satisfied two requirements,” the plaintiffs say.
They claim the manufacturer must calculate the corrected amount of protein per serving based on the quality of the products protein using the score method. Then the manufacturer must use the score to provide a statement of the correct amount of protein per serving in the nutrition facts panel as a percent daily value and placed immediately next to the statement of protein quantity. The daily value number is the corrected amount of protein per serving divided by the daily reference value for protein of 50 grams.
According to the plaintiffs, FDA regulations are clear that manufacturers may not make front label claims about the amount of protein in the product unless it complies with these requirements.
As for the "with milk" issue, the plaintiffs say that while some of Nature’s’ products include a “barely legible notation” that reads ‘per serving with milk,’ the company states in the nutrition facts panel for the Hemp Hearts Granola that there are 10 grams of protein with milk and 6 grams of protein without milk — all while failing to include a corrected amount of protein as a daily value for either of those computations.
“A person who consumes the product without milk receives only approximately 3 grams of usable protein, or 30% of the amount represented on the front panel,” the plaintiffs say.
In his order Wednesday, Gilliam said the plaintiffs may face an uphill battle to prove their claims but at this stage in the litigation they've done enough to advance.
"The court finds that plaintiffs now 'plausibly allege that they themselves were deceived by the omission.' Further, while establishing the ultimate persuasiveness of this claim on the merits may be an uphill battle under the circumstances, the court cannot conclude at this stage that the fact that plaintiffs looked at the two-column side label makes their reliance
allegations inherently implausible as a matter of law," Gilliam wrote.
He found similarly on the plaintiffs' "with milk" argument.
"Again, setting the persuasiveness of plaintiffs’ ultimate merits position to the side, the court cannot conclude given the alleged layout of the various representations that the fact that the front label specifies a 'with milk' protein amount or the fact that the NFP has two columns — one which specifies the protein content of the product with milk and another which specifies the protein content of the product without milk — renders plaintiffs’ reliance allegations inherently implausible as a matter of law on a motion to dismiss," Gilliam wrote.
He scheduled a telephone case management conference for later in April. Attorneys and representatives of Nature’s Path did not respond to requests for comment by press time.
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