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United States District Court for the Northern District of California
November 12, 2020, Decided; November 12, 2020, Filed
Case No. 20-cv-02901-RS
ORDER DENYING MOTION TO DISMISS
Plaintiff in this putative class action contends the marketing and labeling of Kodiak Cakes brand flapjack and waffle mixes are deceptive to consumers. Defendants [*3] Baker Mills, Inc. and Kodiak Cakes, LLC, who apparently jointly produce the mixes, move to dismiss, arguing that one aspect of plaintiff's claims is preempted by FDA regulations, and as to the other, plaintiff cannot show reliance. Neither argument is persuasive, and the motion will be denied.
As defendants acknowledge, pancake and waffle mixes traditionally have not contained much protein. Defendants' mixes in dispute, however, are allegedly marketed and labeled to stress that they contain relatively high levels of protein, thereby commanding a premium price from "health conscious" consumers seeking "foods high in protein to support weight loss, exercise, and general fitness . . . ."
Plaintiff brings claims under a number of different theories, all sounding in California law.1 The claims, however, all rest on two basic alleged failings in the product labeling. First, on the front of each package of defendants' mixes, the supposed protein content of the product is prominently displayed, in grams. The specific number of grams varies from variety to variety, ranging from 8 grams for "Whole Wheat" and "Oat & Honey," up to 14 grams for such varieties as "Buttermilk" and "Dark [*4] Chocolate."
According to plaintiff, the grams claimed for each variety overstates the actual protein content by approximately 17%. The parties agree the apparent discrepancy arises from an issue of measuring methodology. Plaintiff calculates the protein content under the so-called "amino acid method." Defendants calculate it under the so-called "nitrogen method." There seems to be no dispute that while the "nitrogen method" is a simpler method, it can give higher results in some instances.
Defendants insist that there is no requirement under FDA regulations that they use the amino acid method when calculating the grams of protein for purposes of listing it on the front of their packages. Accordingly, defendants contend, plaintiff's state law claims are preempted, because she is attempting to use state law to impose additional or more stringent labeling requirements than those set by the FDA.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2020 U.S. Dist. LEXIS 258880 *
SHERRIS MINOR, Plaintiff, v. BAKER MILLS, INC., et al., Defendants.
Subsequent History: Later proceeding at Minor v. Baker Mills, Inc., 2021 U.S. Dist. LEXIS 195019 (N.D. Cal., May 20, 2021)
Motion denied by Minor v. Baker Mills, 2021 U.S. Dist. LEXIS 195020 (N.D. Cal., May 20, 2021)
Motion denied by Minor v. Baker Mills, Inc., 2021 U.S. Dist. LEXIS 182400 (N.D. Cal., Sept. 23, 2021)
protein, grams, Nutrition, calculated, regulations, labeling, nitrogen, nutrient, amino acid, defendants', packaging, products, serving, testing, front, mixes, motion to dismiss, plaintiff's claim, methodology