Marketing for ‘protein-packed’ trail mix may have violated FDA rules, judge finds

(CN) — San Jose resident John Forrett was looking for a healthy snack at Walmart when he settled on a product called "Protein Packed Trail Mix."

Forrett says he read the packaging before purchasing — but he says he still got duped.

In a lawsuit first filed last year in federal court in California, Forrett accused New Jersey-based manufacturer Gourmet Nut of violating California consumer protection laws by misleading consumers about the protein content of the product. Gourmet Nut hoped to see the case thrown out — but on Thursday, a federal judge mostly declined to do so, finding Forrett had raised valid questions about whether Gourmet Nut's packaging complies with FDA regulations.

In his original lawsuit, from March 2022, Forrett alleged that Gourmet Nut engaged in “deceptive, misleading, and unlawful” marketing with regards to its Protein Packed Trail Mix.

The trail-mix packaging asserts the mixture is “protein packed" but does not give a percent daily value (PDV) of protein, misleading the consumer to the product’s actual protein content, he argued.

Gourmet Nut, for its part, argued Forrett's claims should be dismissed. Among other arguments, it says his claims are preempted by the Federal Food, Drug and Cosmetic Act of 1938.

The FDCA established rules governing labels on food products, including nutritional information. Through his lawsuit, Forrett essentially seeks to impose new requirements that are different from what is required under the FDCA, the company argued.

In her order on Friday, U.S. District Judge Beth Labson Freeman partially agreed with lawyers for Gourmet Nut, finding that Forrett had failed to state a valid claim for unjust enrichment because his claims there could fall under the purview of another "valid cause of action."

Overall, though, the Obama appointee found Forrett could pursue other claims that Gourmet Nut’s packaging does not comply with FDA regulations or otherwise violates consumer-protection and truth-in-advertising laws.

Critically, Freeman also found Forrett had standing to sue after Forrett said he would be willing to purchase the product again if missing protein information was included. "This allegation is sufficient to allege standing," the judge ruled.

“In a product with prominent information about protein, the Court determines that it is at least plausible that a reasonable consumer would consider the PDV (percent of daily value) to be material," Freeman wrote in her order. "The fact that the FDA requires the PDV (percent daily value) to be included on products that make nutrient content claims suggests that consumers would care about this information in deciding whether to purchase a product."

In her ruling, Freeman zeroed in on what information was included on the trail mix packaging — and what was omitted.

While the trail mix packaging notes it includes seven grams of protein, that leaves out an important "distinction between protein quantity and quality," Freeman noted. The company does not include the "FDA-mandated measure of protein quality" on its packaging, which might lead consumers to eat "incomplete proteins" without realizing it.

Despite this lack of information, the company still leaned heavily on protein as a marketing tactic — including with a paragraph about "the importance of protein" included on the package.

"Protein is an essential part of muscle tissue formation, strengthens the immune system, and keeps you fuller longer," Gourmet Nut gushes on the packaging. "Our Protein Packed Trail Mix makes a great pre- or post-workout snack as well as a delicious part of a daily 'weight smart' diet."

Lawyers for Forrett and Gourmet Nut did not respond to requests for comment by press time.

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