Protein Power: Defendants Are Beating Back Allegations Of Misleading Protein Content

KEY TAKEAWAY:

Defendants have found recent success having courts dismiss or significantly narrow consumer class action lawsuits alleging that products' advertised protein content is false or misleading.

A slew of putative class action lawsuits, primarily filed in the Northern District of California, allege that the makers of protein bars and shakes, breakfast foods, and snack products inaccurately represent the amount of protein in their products.

These class action lawsuits are most often based upon one of two theories. The first is that the protein content advertised on a product's packaging is misleading because it assumes the addition of milk (and the protein the milk contains) will be added to the product.¹ The second theory is that the products are made with "low quality proteins," and, consequently, only 40% to 50% of the protein in the product can be used by the human body. Thus, the theory goes, because these products have a low Protein Digestibility