SAN FRANCISCO (Legal Newsline) - Some of a proposed class action lawsuit against the maker of Ezekiel 4:9 cereals has been tossed by a federal judge, though lawyers will have a chance to file an amended complaint to address her concerns.
California judge Trina Thompson on Feb. 27 granted parts of Food for Life Baking's motion to dismiss the suit while denying other parts. Importantly, Thompson threw out claims customers were misled by the products' front labels, without leave to amend.
The suit states packaging for waffles, burger buns, English muffins and cereals states they are made from sprouted, organic live grains, legumes or seeds and do not contain flour. The plaintiff targeted claims the products "were living grains and that sprouting caused positive nutritional changes in the components of the products."
"This claim is misleading because by the time the sprouted grain is dried, grounded into flour and heated, any nutritional benefits which may have existed have been extinguished," the suit states.
At issue is the amount of protein promised on the front label, and whether consumers actually receive that much digestible protein.
"Here, the FDA expressly allows front label protein claims based on the nitrogen method," Thompson wrote. "As such, Plaintiff's claims based on fraud regarding the front label protein claim due to the methodology is expressly preempted and dismissed.
"As this is a defect with the legal theory, the dismissal is without leave to amend."
And not including the percentage of a consumer's daily value of protein is also allowed, as the FDA allows manufacturers to include extra information in a nutrition facts label on the back of packaging when they make statements about protein elsewhere.
But Thompson will allow claims the nutrition facts panel did not include a correct daily value to proceed. She also rejected Food for Life's argument the plaintiff did not rely on its protein claims when making her purchases.
Thompson will also get to pursue claims on products she didn't buy, as her alleged omission of the daily value percent is the same for all accused products.
Thompson struck the claim for punitive damages, but lawyer Spencer Sheehan can address that in his soon-to-be-filed amended complaint.