As discussed in our recent post, a court in the Northern District of California recently dismissed a complaint against Kashi involving its front-of-pack protein content claims.  See Nacarino v. Kashi Co., No. 21-CV-07036-VC, 2022 WL 390815, at *1 (N.D. Cal. Feb. 9, 2022).  That decision confirmed that food manufacturers may use the “nitrogen method” to calculate protein content claims made outside the Nutrition Facts Label and that plaintiffs’ theory that manufacturers must adjust such claims to reflect protein digestibility is preempted.  Judge Seeborg, also of the Northern District of California, followed in the footsteps of the Kashi court on February 15 by dismissing with prejudice a virtually identical case against KIND.  See Chong v. KIND LLC, No. 21-CV-04528-RS, 2022 WL 464149 (N.D. Cal. Feb. 15, 2022).

Judge Seeborg’s decision in KIND is particularly noteworthy as, in 2021, he had denied a motion to dismiss a nearly identical action (filed by the same plaintiffs’ counsel) in a case captioned Minor v. Baker Mills, Inc., No. 20-CV-02901-RS, 2021 WL 4522290 (N.D. Cal. May 20, 2021).  The KIND plaintiffs thus argued that the court should likewise deny KIND’s motion to dismiss.  Judge Seeborg rejected that argument, however, reasoning that it has “now become apparent . . . that Minor was incorrectly decided.”  The KIND decision confirms that “[b]ecause plaintiffs are attempting to use state law to impose labeling requirements that go beyond what the FDA regulations require, their claims are preempted and the motion to dismiss must be granted.”  The court also dismissed with prejudice plaintiffs’ claims challenging the lack of a % Daily Value reference on certain product labels, holding that those claims were likewise preempted.

That two courts in N.D. Cal. have now determined that plaintiffs’ theory is flawed as a matter of law may bode well for other food manufacturers that are still defending a handful of similar lawsuits in this and other venues.

Photo of Olivia Dworkin Olivia Dworkin

Olivia Dworkin minimizes regulatory and litigation risks for clients in the medical device, pharmaceutical, biotechnology, eCommerce, and digital health industries through strategic advice on complex FDA issues, helping to bring innovative products to market while ensuring regulatory compliance. With a focus on cutting-edge…

Olivia Dworkin minimizes regulatory and litigation risks for clients in the medical device, pharmaceutical, biotechnology, eCommerce, and digital health industries through strategic advice on complex FDA issues, helping to bring innovative products to market while ensuring regulatory compliance. With a focus on cutting-edge medical technologies and digital health products and services, Olivia regularly helps new and established companies navigate a variety of state and federal regulatory, legislative, and compliance matters throughout the total product lifecycle. She has experience counseling clients on the development, FDA regulatory classification, and commercialization of digital health tools, including clinical decision support software, mobile medical applications, general wellness products, medical device data systems, administrative support software, and products that incorporate artificial intelligence, machine learning, and other emerging technologies.

Olivia also assists clients in advocating for legislative and regulatory policies that will support innovation and the safe deployment of digital health tools, including by drafting comments on proposed legislation, frameworks, whitepapers, and guidance documents. Olivia keeps close to the evolving regulatory landscape and is a frequent contributor to Covington’s Digital Health blog. Her work also has been featured in the Journal of Robotics, Artificial Intelligence & Law, Law360, and the Michigan Journal of Law and Mobility.

Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable…

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable terms.

On behalf of a range of clients in the food, beverage, and consumer packaged goods industries, Cort has navigated pre-complaint disputes and defended multiple class actions implicating deceptive and false advertising practices under California’s UCL, FAL, and CLRA, and other states’ false advertising and unfair competition laws. Cort also has a depth of experience with competition matters, having represented clients in civil class action litigation, non-public governmental investigations of both the civil and criminal variety, and internal investigations. He has had a lead role in cases and investigations implicating the high tech industry, alleged “no-poach” agreements, and price-fixing and similar cartel conduct. He is also a leader in the antitrust bar and the recent chair of the Antitrust Section of the Bar Association of San Francisco.

Cort is a co-chair of Covington’s LGBT+ Affinity Group and is deeply involved in the firm’s efforts to recruit, mentor, and promote diverse attorneys, including LGBT+ attorneys.

Prior to joining Covington, Cort was a national political consultant who specialized in polling and focus group research. He leverages this research background in his litigation practice, particularly in defending consumer cases.