Roffman v. Perfect Bar, LLC

Background

The plaintiffs were consumers who bought Perfect Bar products displaying front-label statements such as “15G PROTEIN” and “7G PROTEIN.” They alleged that these statements were misleading because they stated only the quantity of protein, not its quality or the amount the body could use. They also alleged that the products’ nutrition facts panels did not provide the protein-quality information required when a protein claim is made.

The plaintiffs asserted claims under California’s Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law, as well as fraud and unjust enrichment. They brought the case on behalf of a nationwide class and a California subclass. They did not assert a direct claim under the Federal Food, Drug, and Cosmetic Act, but relied on federal requirements as incorporated into or supporting their California-law claims.

First theory: missing protein-quality figures

The plaintiffs’ first theory was that the front-label protein claims violated federal food-labeling regulations because the nutrition facts panel did not include a corresponding figure based on the Protein Digestibility Corrected Amino Acid Score, or PDCAAS. The court concluded that the plaintiffs plausibly alleged a violation of the regulations. It also held that California-law claims based on this theory were not expressly preempted, because the alleged conduct was prohibited by the federal regulations, and were not impliedly preempted because the claims paralleled federal requirements rather than directly enforcing the federal statute.

The court nevertheless held that the plaintiffs had not adequately alleged reliance. For this theory, they needed to allege that they relied on the nutrition facts panel’s omission, not merely that they read and relied on the front-label protein statements. Because the complaint did not allege that the plaintiffs looked at or relied on the nutrition facts panel, it did not establish the required causal connection between the omission and their alleged injury. The court granted the motion to dismiss as to this theory, with leave to amend so the plaintiffs could allege what they read and relied on in the nutrition facts panel.

Second theory: statements allegedly misleading

The plaintiffs separately alleged that the nitrogen-method protein statements were misleading in two ways: because the nutrition facts panel omitted the corresponding PDCAAS figures, and because the statements were misleading in themselves when used for products containing low-quality protein.

The court held that the first deception theory was expressly preempted. In the court’s view, federal regulations permit a nitrogen-method protein figure without additional information, so a state-law claim treating that figure as misleading because it lacked a corresponding PDCAAS figure imposed a requirement different from federal law. The court dismissed claims based on this theory without leave to amend because the defect was legal, not factual.

The court also held that the second deception theory was expressly preempted. The federal regulations allow the nitrogen method for protein nutrient claims, without distinguishing between low- and high-quality protein. The court therefore concluded that state law could not impose a different requirement by treating an FDA-approved measurement method as inherently misleading. It dismissed claims based on this theory without leave to amend.

Disposition

The court granted Perfect Bar’s motion to dismiss. Claims based on the alleged failure to include PDCAAS figures under the cited federal regulations were dismissed with leave to amend. Claims based on the two misleading-label theories were dismissed without leave to amend. The plaintiffs could file an amended complaint by October 3, 2022.

The court also granted in part and denied in part Perfect Bar’s request for judicial notice. It took notice of 2022 FDA guidance but declined to take notice of private emails between FDA representatives and attorneys for manufacturers. Judge Jacquelyn Scott Corley signed the order.