Nacarino v. Kashi Company

Background

The plaintiffs challenged Kashi’s statements on food packaging about protein amounts. The opinion gives as an example a cereal box stating “11g Protein” on the front. According to the complaint, Kashi calculated these figures using the nitrogen-content method and did not adjust them for protein digestibility.

The plaintiffs alleged that direct amino-acid testing showed less protein than the nitrogen-based calculation, and that adjusting for digestibility showed an even smaller amount of protein usable by the human body. The opinion gives the example of a Kashi cereal alleged to contain 11 grams under the nitrogen method, 9.37 grams when directly measured, and 7 grams after adjusting for digestibility.

The plaintiffs brought claims under state consumer-protection and tort law. Kashi moved to dismiss.

Federal labeling rules and preemption

The Food and Drug Administration’s rules require the Nutrition Facts label to state the grams of protein in a serving. The rules permit manufacturers to calculate that amount using the nitrogen-content method. The rules also allow a digestibility-adjusted figure to be included as a percentage of daily value when a package makes an additional protein statement, but they do not require the protein amount itself to be adjusted for digestibility.

A separate rule permits statements about nutrient amounts outside the Nutrition Facts label if the statement does not implicitly characterize the nutrient level and is not false or misleading under the regulation. The plaintiffs did not argue that Kashi’s statement implicitly characterized the amount of protein. They argued instead that the statement was misleading because the nitrogen-content method overstated the amount and because the figure was not adjusted for digestibility.

The court explained that federal law preempts, or blocks, state-law claims that impose requirements different from federal food-labeling requirements. The question was therefore whether federal regulations permitted Kashi’s statements. If they did, the plaintiffs’ state-law claims were preempted.

Court’s reasoning

The court held that the relevant regulations did not treat Kashi’s statement as misleading. The regulations expressly authorize the nitrogen-content method and do not require manufacturers to adjust protein-quantity statements for digestibility. In the court’s view, the protein-specific rule governing the Nutrition Facts label clarified the more general rule governing statements elsewhere on the package.

The court acknowledged that consumers might understand “11g” to mean that their bodies would digest 11 grams of protein, even though less might be usable. But it held that the regulatory meaning of “misleading,” rather than the ordinary conversational meaning, controlled. The court reasoned that the additional digestibility information required in the Nutrition Facts label when a package makes a protein statement supplies consumers with more information; it does not mean that the unadjusted protein amount is inherently misleading.

The court also relied on Food and Drug Administration guidance issued in early 2022 stating that protein statements outside the Nutrition Facts label may use either the nitrogen-content method or the digestibility-corrected figure. The court distinguished Ninth Circuit decisions involving “No Trans Fat” claims, finding those claims unambiguously false because the products contained some trans fat. It declined to follow several district court decisions that had reached a different conclusion.

Disposition

The court held that Kashi’s protein statements were expressly permitted by the federal food-labeling requirements. It therefore held that the plaintiffs’ state-law claims were preempted and granted Kashi’s motion to dismiss. Because the defect was in the plaintiffs’ legal theory rather than their factual allegations, the court dismissed the case with prejudice.

The court granted Kashi’s motion for leave to file notice of supplemental authority and took judicial notice of the FDA guidance. It denied Kashi’s additional requests for judicial notice because they were not needed to resolve the motion.