Chong v. KIND LLC

Background

Lisa Chong and Zach Schwartz filed a proposed class action challenging statements KIND LLC makes on the packaging of various breakfast and snack products about their protein content. They alleged that KIND overstated the protein amounts because it used low-quality, incomplete protein sources and did not account for digestibility. They also alleged that some products lacked a “% Daily Value” figure in the Nutrition Facts panel.

The plaintiffs’ claims were based on state law. KIND moved to dismiss under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim, arguing that the Food, Drug, and Cosmetic Act preempted the claims.

Front-of-package protein statements

The court held that federal regulations expressly allow KIND to state protein amounts in grams using the nitrogen method and without adjusting those amounts for digestibility in the Nutrition Facts panel. The court considered whether KIND could use the same numbers elsewhere on the packaging.

The court rejected the reasoning of a prior related proceeding, Minor v. Baker Mills, Inc., which it said had confused two different concepts: the method for calculating the raw number of protein grams and the digestibility adjustment used to calculate the Protein Digestibility Corrected Amino Acid Score. The court concluded that the regulations do not prohibit using the nitrogen method to calculate the raw grams of protein before applying the appropriate digestibility factor for the “% Daily Value.”

Because federal regulations permit stating grams of protein outside the Nutrition Facts panel using the nitrogen method and without a digestibility adjustment, the court held that the state-law claims challenging those statements were preempted. It granted the motion to dismiss those claims without leave to amend because the defect was in the legal theory rather than the factual allegations.

Missing “% Daily Value” figures

The court also held that the claims based on KIND’s alleged failure to include “% Daily Value” figures were preempted. It explained that state-law claims may proceed when they rest on traditional state-law duties that existed independently of federal law, but not when they depend on proving a violation of federal law.

The court found that the plaintiffs relied on California’s Sherman Law, which adopts federal food-labeling regulations as California law. Because the claims depended on those federal requirements and did not arise from a preexisting, traditional state-law duty, the court held that they were impliedly preempted. It dismissed those claims without leave to amend for the same reason.

Disposition

Judge Richard Seeborg granted KIND’s motion to dismiss, without leave to amend. The order states that a separate judgment would issue. The opinion also noted that dismissal might independently be warranted because the plaintiffs had not alleged a legally recognizable injury from the omissions, but the court’s stated rulings rested on preemption.