By Jonathan Stempel
(Reuters) – Kellogg and its Kashi unit have defeated appeals seeking to revive two proposed class actions accusing them of deceiving consumers about the protein content of their products.
In a 3-0 decision on Monday, the 9th U.S. Circuit Court of Appeals in San Francisco agreed with a lower court judge that federal law preempted the plaintiffs’ claims under California and Illinois consumer protection laws.
The plaintiffs objected to Kellogg’s alleged false and misleading labeling on more than 30 cereals, bars, granola products, shakes, waffles and meat substitutes sold under the Kashi, Bear Naked, MorningStar Farms, RX and Special K brands.
They said the labels were deceptive because they “broadly tout protein quantity,” with claims such as “11g Protein” and “PROTEIN 15g,” without disclosing that the amounts include “poor quality” protein that the human body cannot absorb.
Circuit Judge Morgan Christen said the text and structure of Food and Drug Administration regulations showed it could be misleading under federal law to promote protein quantity on labels, outside of the “nutritional facts” panel, that doesn’t take into account protein quality.
But she found no allegations that Kellogg crossed a line, and said the Battle Creek, Michigan-based company could not be held to higher standards under state laws.
Lawyers for the plaintiffs did not immediately respond to requests for comment. Kellogg and its lawyers did not immediately respond to similar requests.
The cases are Nacarino et al v Kashi Co, 9th U.S. Circuit Court of Appeals, No. 22-15377; and Brown et al v Kellogg Co in the same court, No. 22-15658.
(Reporting by Jonathan Stempel in New York; Editing by Conor Humphries)
