Pino v. Birch Benders, LLC

Background

Brittney Pino and Terri Gamino brought a proposed class action against Birch Benders, LLC, alleging that Birch Benders’s pancake and waffle mixes were mislabeled. The products’ front labels made protein-quantity statements, such as “10G PROTEIN.” The plaintiffs alleged that the products used plant-based proteins and therefore provided humans with less usable protein than the labels represented. They also alleged that the products’ Nutrition Facts Panels did not include the corrected protein amount as a percentage of Daily Value.

The plaintiffs alleged claims under the Consumers Legal Remedies Act, California false-advertising law, fraud and misrepresentation law, California’s Unfair Competition Law, and unjust-enrichment law. Their theories were divided into front-label protein claims and Nutrition Facts Panel omission claims. Birch Benders moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), which concerns subject-matter jurisdiction, and 12(b)(6), which tests whether a complaint states a legally sufficient claim. Birch Benders also asked the court to stay the case while appeals proceeded in separate, similar food-labeling cases.

Standing

The court denied the motion to dismiss the plaintiffs’ request for injunctive relief. The complaint alleged that the plaintiffs continued to want protein products, regularly visited stores selling Birch Benders products, and would likely purchase the products in the future if they were reformulated to provide the represented amount of protein. The court also accepted the allegation that, without an injunction, the plaintiffs would be unable to rely on Birch Benders’s labels when shopping because they could not determine the products’ formula or test their protein content.

The court also denied dismissal of the Nutrition Facts Panel omission claims for lack of standing. The plaintiffs alleged that they regularly checked Nutrition Facts Panels, including the percentage Daily Value for protein, and would have used that information to compare products. They further alleged that they would not have bought the products, or would have paid less for them, if the protein information had been disclosed.

Preemption of the Front-Label Claims

The court granted the motion to dismiss the front-label protein claims and dismissed those claims with prejudice. Federal food-labeling law expressly preempts state-law claims that impose requirements different from federal requirements. Relying on federal regulations and decisions from the Northern District of California, the court held that the regulations authorize the nitrogen-content method for calculating protein and do not require manufacturers to adjust front-label protein statements for digestibility. Because the plaintiffs’ front-label theory challenged the use of that method, the court found the claims expressly preempted.

Preemption of the Nutrition Facts Panel Omission Claims

The court denied the motion to dismiss the Nutrition Facts Panel omission claims based on implied preemption. It applied the reasoning that state-law claims may proceed through a narrow gap when they challenge conduct that violates the federal food-labeling law but do not seek relief because the conduct violates that federal law itself. The complaint disclaimed causes of action under the federal law and its regulations and alleged that the protein statements were misleading under California law. The court therefore found that these claims were not barred by implied preemption.

Disposition

Judge Thomas S. Hixson granted in part and denied in part Birch Benders’s motion to dismiss. The front-label protein claims were dismissed with prejudice. The court denied dismissal of the Nutrition Facts Panel omission claims and denied dismissal of the request for injunctive relief. The court also denied Birch Benders’s request to stay the case.