Chong v. Kind LLC

Chong v. Kind LLC

Opinion

ORDER GRANTING MOTION TO DISMISS

I. INTRODUCTION

In this putative class action, named plaintiffs Lisa Chong and Zach Schwartz challenge the statements defendant KIND, LLC makes on the packaging of various "breakfast and snack products" sold under the KIND brand name regarding the protein content of those products. KIND moves to dismiss, arguing plaintiffs' claims, which all sound in state law, are preempted by the Food, Drug, and Cosmetic Act (FDCA).

Plaintiffs' counsel previously filed a nearly identical action against a maker of pancake and waffle mixes. See Minor v. Baker Mills, Inc., No. 20-cv-02901 RS. A motion to dismiss in Minor, brought largely on the same grounds advanced here, was denied. It has now become apparent, however, that Minor was incorrectly decided. Because plaintiffs are attempting to use state law to impose labeling [*2]  requirements that go beyond what the FDA regulations require, their claims are preempted and the motion to dismiss must be granted.

II. BACKGROUND

KIND manufactures, distributes, markets, and sells nut bars, granola, and other snack products. One of the ways KIND markets many of its products is by touting the grams of protein per serving on the front of its packages. Plaintiffs insist KIND's products do not contain or provide the amount of protein claimed on the front because KIND uses "low quality, incomplete protein sources that are of little use to the human body." Plaintiffs contend that KIND's labels are therefore misleading and the products misbranded under state and federal law. In addition to the claim that the amount of protein is overstated on the front of packaging, plaintiffs allege that KIND has failed to include a "% Daily Value" figure in the Nutrition Facts panels for some of its products.

Plaintiffs correctly note that this case is "nearly identical" to Minor. The original complaint in Minor focused on a theory that the grams of protein in the products had been overstated because defendant calculated the number using the "nitrogen method," rather than an "amino acid method." [*3]  Although that complaint survived a motion to dismiss, the plaintiff subsequently amended to present a refined theory that the product labeling was misleading not only because of how the grams of protein were calculated, but also because the numbers were not adjusted for "digestibility," given the particular source of the protein. The complaint in this action similarly stresses the latter point.

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