Nacarino v. Kashi Co.

Nacarino v. Kashi Co.

Opinion

ORDER GRANTING MOTION TO DISMISS

Re: Dkt. No. 21

The plaintiffs challenge the statements Kashi makes on its packaging about the amount of protein in its food products. Although the underlying regulatory scheme is convoluted, the ultimate issue is simple: Is it "false or misleading" within the meaning of the Food, Drug, and Cosmetic Act (FDCA) for a manufacturer to state on the front of the package that a product contains eleven grams of protein, when that figure has been calculated using a technique authorized by FDA regulations? The answer is no. Because the technique is FDA-approved, the statement cannot be considered misleading within the meaning of the statute. The motion to dismiss is therefore granted. [*2]  And because the defect with the plaintiffs' case lies in the legal theory, not the factual allegations, the dismissal is with prejudice.

Everyone knows that protein is essential for a healthy diet. It's therefore common for consumers to pick the foods they eat based on protein content. Manufacturers are well aware of this, as a quick trip to the grocery store demonstrates—walk down any aisle and you'll see products boasting their protein content left and right ("Good source of Protein!" "High Protein!" "11g Protein!"). When one cereal claims eight grams, and another eleven, it's no mystery which one a protein-conscious consumer is going to choose, all other things being relatively equal. But as it turns out, these figures may not be as comparable as they seem.

Protein is not a monolithic substance, but rather consists of chains of amino acids. Different combinations of amino acids make different types of protein. And the ability of the human body to use protein depends on its composition; certain combinations of amino acids are more digestible than others. As a result, from the perspective of a human consumer, protein quality varies. Whey protein, for example, is particularly high [*3]  quality, as it is fully digestible by humans. But the protein in oats is lower quality, as roughly half of oat protein is not digestible by (and therefore, not beneficial to) the human body. Due to the difference in protein quality, two cereals that both contain eleven grams of protein may vary significantly in the amount of protein that is usable by the human consumer.

Additionally, the way protein is measured makes a difference. According to the complaint, the amount of protein in food can be measured directly by calculating its amino acid content (a technique the plaintiffs call "amino acid content testing"). But protein can be measured indirectly too. The more protein that a product has, the more nitrogen there will be. Thus, the amount of protein in a product can be estimated by multiplying its nitrogen content by some factor (6.25, as it turns out). As the complaint describes the procedures, direct measurement will always be the more reliable technique.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.