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.

Prior to joining Covington, Olivia was a fellow at the University of Michigan Veterans Legal Clinic, where she gained valuable experience as the lead attorney successfully representing clients at case evaluations, mediations, and motion hearings. At Michigan Law, Olivia served as Online Editor of the Michigan Journal of Gender and Law, president of the Trial Advocacy Society, and president of the Michigan Law Mock Trial Team. She excelled in national mock trial competitions, earning two Medals for Excellence in Advocacy from the American College of Trial Lawyers and being selected as one of the top sixteen advocates in the country for an elite, invitation-only mock trial tournament.

Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes antitrust and consumer matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has a depth of experience helping his clients successfully navigate the entire lifespan of these matters, from leading internal…

Cortlin Lannin is a litigator who defends clients in high-stakes antitrust and consumer matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has a depth of experience helping his clients successfully navigate the entire lifespan of these matters, from leading internal investigations to defending government investigations and class action litigation.

Cort is co-chair of the firm’s global Cartel Defense and Government Investigations Practice Group and represents companies and individuals facing criminal and civil antitrust investigations, including before the DOJ Antitrust Division and FTC. Cort is also an experienced class action litigator and has defended his clients in cases implicating the high-tech industry, alleged “no-poach” and wage-fixing agreements, price-fixing, and similar conduct. He has been recognized as a Top Antitrust Lawyer by the Daily Journal.

Cort has also defended many of the world’s largest consumer companies in class action litigation. This includes cases alleging false advertising, deceptive trade practices, and privacy violations under California, New York, and other states’ laws. He is experienced at heading off cases before any complaint is filed and successfully defeating complaints at the pleading stage. The Daily Journal has recognized Cort as achieving a “Top Verdict” and as one of California’s Top 100 lawyers, noting that “he has developed a track record of securing dismissals in consumer class action cases before discovery begins—a feat that remains uncommon in a practice area where courts typically allow plaintiffs broad latitude to develop their theories.”

Cort is also an editor of the firm’s Inside Class Action blog and regularly contributes analyses of new class action decisions and developments.

Cort maintains an active pro bono practice and is a co-chair of Covington’s CovPride Resource Group.

Watch: Cort provides insights on class action litigation, as part of our Navigating Class Actions video series.