SAN FRANCISCO (Legal Newsline) - Class action lawyers have found a court receptive to their claims that food companies are misrepresenting the quantity and quality of the protein in their products.
Two hurdles to cross recently came in lawsuits against Dave's Killer Bread and Perfect Bar in U.S. District Court for the Northern District of California. Judge Yvonne Gonzalez Rogers denied the defendants' motion to dismiss on Jan. 9 in the Killer Bread case.
The disclosed protein content on packages is accurate but companies are failing to account for the digestibility of the types of protein, plaintiffs say. This leads to inaccurate daily value percentages, they say.
The firm Gutride Safier is pursuing many of these cases and have appealed their only loss in the district in a case against Kind. Judge Rogers says she "respectfully disagrees" with that ruling.
"Defendants argue that (plaintiff David Swartz) has not adequately alleged that he relied on the nutrition label in deciding to buy defendants' products," Rogers wrote in the Dave's Killer Bread ruling.
"The court disagrees. As in the initial complaint, plaintiff alleges that he read and relied on the front label statement that a serving had five grams of protein.
"To this, the (first amended complaint) adds that he also 'looked at and read the (nutrition label) on the products before purchasing them for the first time' and 'had he seen that the product provided only 5% (or less) of the daily value for protein' he would not have purchased the product or would have paid less for it."
Rogers cites decisions in lawsuits against Birch Benders and Perfect Bar in the Northern District.
Judge Thomas Hixson allowed the Birch Benders case to move forward, while Judge Jacqueline Scott Corley denied Perfect Bar's motion to dismiss on Jan. 12.
Corley had granted a first motion to dismiss in September but not on federal preemption claims and allowed the plaintiffs to file an amended complaint.
"Defendant insists that because Plaintiffs added the nutritional facts panel allegation to their amended complaint the Court should conclude their allegations are implausible," Corley wrote.
"Defendant cites no case to support its argument. This omission is unsurprising because if that were the law, there would be no point in granting leave to amend.
"And Defendant is asking the Court to draw inferences in its favor: an allegation only added in an amended complaint must not be plausible. This argument violates black-letter law."