Roffman v. Perfect Bar, LLC

Background

The plaintiffs are consumers challenging Perfect Bar’s front-label statements about protein amounts, including “15G PROTEIN” and “7G PROTEIN.” They alleged that protein grams alone do not show how much protein the body can use because proteins differ in amino-acid content and digestibility.

The amended complaint relied on the Protein Digestibility Corrected Amino Acid Score, or PDCAAS, which measures protein quality and can be expressed as a percentage of daily value. The plaintiffs alleged that federal food-labeling regulations require a PDCAAS figure on the nutrition facts panel when a product makes a front-label protein claim using the nitrogen method. They alleged that many Perfect Bar products made such front-label claims without listing a PDCAAS figure.

The plaintiffs alleged that they read and relied on the front labels and the nutrition facts panels before buying the products. They said they believed the listed protein amounts represented protein their bodies could use. They further alleged that they would not have bought the products or would have paid less if they had known the products provided less usable protein. Their only cause of action was under California’s Unfair Competition Law, based on the law’s unlawful-practices provision. They did not bring a claim directly under the federal food, drug, and cosmetic statute or its regulations.

Prior ruling and motion

In an earlier ruling in this case, the court held that the plaintiffs’ theory—that the front-label protein claims failed to comply with 21 C.F.R. §§ 101.9(c)(7) and 101.13(n)—was not preempted by federal law but dismissed the claims because the plaintiffs had not plausibly alleged reliance. The court allowed them to amend their complaint.

Perfect Bar then moved to dismiss the amended complaint. It argued that the plaintiffs’ allegations about reliance were implausible, including because they added allegations about reading the nutrition facts panel and described themselves as attentive to protein. The court considered whether the amended allegations plausibly showed that the plaintiffs relied on the alleged labeling defect when deciding to buy the products.

Court’s analysis

For the plaintiffs to have statutory standing for their unlawful-practices claim, they had to allege that they actually relied on the labeling defect when making their purchases. They also had to truthfully allege that they would have known about the omitted information and acted differently if it had been disclosed.

The court concluded that the plaintiffs met that pleading standard. It relied on their allegations that they cared about protein for specific reasons, regularly read nutrition facts panels, read Perfect Bar’s panel before their first purchases, and would not have bought the products or would have paid less if the panel had disclosed the lower usable-protein amount.

The court rejected Perfect Bar’s request to infer that the newly added allegations were implausible merely because they appeared in the amended complaint. It also rejected the argument that protein-conscious consumers would necessarily have understood that the nitrogen-method figures did not represent usable protein. On a motion to dismiss, the court explained, reasonable inferences are drawn in the plaintiffs’ favor, and plausibility requires more than a mere possibility but less than proof of probability.

The court also found no meaningful distinction between alleging that the front-label protein claim was unlawful because the nutrition facts panel omitted a PDCAAS figure and alleging that the omission itself was unlawful because of the front-label claim. Under the regulations discussed by the court, the alleged labeling problem could be corrected by adding the PDCAAS figure or removing the front-label protein claim.

Disposition

The court held that the plaintiffs plausibly alleged actual reliance and that Perfect Bar had not identified another reason the unlawful-practices claim failed as a matter of law. The court denied Perfect Bar’s motion to dismiss the amended complaint. The order also set an initial case-management conference and stated that it disposed of Docket No. 44.