Monday, March 13, 2023

"fit" on snack bars isn't implied nutrient or "healthy" claim

Seljak v. Pervine Foods, LLC, 2023 WL 2354976, No. 21 Civ. 9561 (NRB) (S.D.N.Y. Mar. 3, 2023)

Plaintiffs sought to represent a class of purchasers of FITCRUNCH Whey Protein Baked Bar products or FITBAR energy bar products. They contain high levels of protein and come in flavors that sound like desserts, including Milk & Cookies, Chocolate Chip Cookie Dough, Apple Pie, and Chocolate Peanut Butter. Plaintiffs, who purchased the products “for the protein” and “to help with muscle gain,” allegedly falsely believed that the products were “healthy,” despite the fact that the term “healthy” or related terms aren’t appear anywhere on the products’ packaging or ads. They based their beliefs on the use of “FIT” in the products’ names. The court found this implausible in context.

The products contain between 8 and 18 grams of fat, which exceeds the permissible level of fat in products labeled as “healthy” under FDA regulations. But each product’s fat content is available on the ingredient panel, which appears on the back of each package.

Genericity watch: As an example, “the package of the Milk & Cookies FITCRUNCH product includes a picture of Oreo cookies”:

A bar whose package shows creme-filled chocolate cookies next to a cut-open bar

The court took judicial notice “of the numerous videos publicly available on defendant’s website of consumers reading the ingredient panel available on the back of the products’ label.” The court also took judicial notice of other publicly available videos on the website “in which fitness trainers reviewing the products caution consumers that while the products contain a high level of protein, they also contain a high number of calories and a high level of fat and therefore may not be suitable for consumers who are trying to lose weight.” Not sure this is judicially noticeable for what reasonable consumers would do, but ok.

Plaintiffs alleged that defendant’s ads state that the products are “different from other nutritional products;” “[d]elicious nutrition for all FIT lifestyles;” and “the most delicious eating experiences that you’ll find in high protein, low sugar products.” The ads also include images of people exercising, and state that the products should be consumed “post workout to refuel, as a snack between meals, and any other time when you need protein on the go.” On defendant’s website, defendant’s co-founder, Chef Robert Irvine, stated that he set out to “create a brand-new bar that not only delivered great nutritional value” and believes that “[n]o matter your age, gender, fitness goals, or dietary restrictions, I’m confident I’ve made something that’s going to meet your needs.” But the complaint didn’t allege that plaintiffs relied on these ads in forming their belief that the products they purchased were “healthy.”

The plaintiffs sought to represent a national class (common law warranty/unjust enrichment claims), a New York subclass, a California subclass, and an Illinois subclass.

There was no standing to seek injunctive relief.

There would be no NLEA preemption if they successfully pled that “FIT” constituted a disallowed implied nutrient content claim as a synonym of “healthy.” But “the FDA already determined decades ago that it would not define synonyms for healthy as it had done for other implied nutrient claims.” Although the FDA has said that, when synonyms “appear in association with an explicit or implicit nutrient content claim or statement about a nutrient, they will be implied nutrient content claims,” “[p]laintiffs do not [then] plead that the word [“FIT”] alone makes any “explicit or implicit claim or statement about a nutrient.” “FIT” didn’t appear in association with a nutrient content claim about the products’ fat content. (By contrast, “[n]utritious, contains 3 grams of fiber,” “[b]est choice, contains 200 mg sodium,” and “[g]ood for you, contains 5 grams of fat,” would do so.) Thus, the claims for violating FDA regulations (as incorporated into state laws) were preempted.

But the baseline claim that use of the term “FIT” on defendants’ was false or misleading was not preempted. It just wasn’t plausible. The high number of calories was listed on the product labels; the FITCRUNCH products’ labels also include “images of desserts, such as Oreo cookies. Accordingly, before even turning to the ingredient label, a reasonable consumer viewing this label simply would not believe that FITCRUNCH products are ‘healthy.’” Even if the term were ambiguous, the ingredients label would cure any ambiguity, especially since “healthy” wasn’t the “ordinary meaning” of “fit.” “In viewing the term ‘FIT’ in the context of the entire label, a reasonable consumer would interpret ‘FIT’ to mean getting into a suitable state to build muscle.”

The court also found that plaintiffs lacked standing to challenge FITBAR products, which they hadn’t bought. The packaging of the two lines was distinct. Each FITCRUNCH product states that it is a “Whey Protein Baked Bar” and has a “baked soft cookie center,” and states it is gluten free. Each FITBAR product states that it is an “energy bar;” is non-GMO, vegan, dairy free, soy free, and gluten-free; and directs “see nutrition facts for total fat content.” The products come in different flavors and have different ingredients (whey protein blend and soy protein as primary ingredients versus organic brown rice syrup and hemp protein).


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