On August 14, 2023, a panel of judges for the United State Court of Appeals for the Ninth Circuit issued a published opinion affirming dismissal of two complaints alleging that food product labels advertising the amount of protein in products were false and misleading under federal and state law. The panel held that the claims were preempted by FDA regulations.

In Case No. 22-15377, the panel ruled on two related cases, Nacarino v. Kashi, and Brown v. Kellog. The plaintiffs in both cases argued that the protein claim on Kashi and Kellog’s labels were false because the nitrogen method the companies used for calculating protein content overstated the actual amount of protein that the products contained. The complaints were both filed in the Northern District of California and asserted identical state consumer protection claims for unfair business practices, unjust enrichment, and fraud. Plaintiffs in both complaints alleged that the front label of Kashi and Kellog’s products touted protein quantity while ignoring the fact that the human body could not absorb the lower-quality protein.

The panel considered that the Food, Drug, and Cosmetic Act (“FDCA”) expressly preempted all state statutes and law that directly or indirectly establish any requirement for the labeling of food that is not identical to federal regulations set forth by statute or by FDA regulations. In affirming the lower court’s dismissal of both complaints, the panel held that FDA regulations specifically allowed manufacturers to use the nitrogen method to measure protein quality, and to use the results of the nitrogen method to make a quantitative nutrient content claim. The panel held that if state law was interpreted to hold defendants to a higher standard than FDA regulations, the state-law claims were expressly preempted.