A federal judge has agreed to dismiss several portions of a consolidated class action accusing Beyond Meat of misleading consumers about its products’ protein content and nutritional value.
At the root of the lawsuit, according to an opinion filed by U.S. District Judge Sara Ellis, is Beyond Meat’s “Future of Protein” marketing campaign, which includes labels that prominently display how much plant-based protein is incorporated into each serving of a given product. Plaintiffs allege the representations are false, citing “commissioned independent laboratory testing” challenging Beyond Meat’s assertions about both total grams and the percentage of recommended daily value.
According to the plaintiffs, the number of protein grams per serving as listed on nutrition facts panels can result from one of two calculation methods, one using a factor of nitrogen content and the other “adjusted for protein digestibility by using the protein digestibility-corrected amino acid score,” (abbreviated as PDCAAS), according to Ellis. They allege Beyond Meat’s labels fell significantly short on either measure.
Ellis granted the company’s motion to dismiss a request for an injunction, noting four named plaintiffs alleged they wouldn’t buy Beyond Meat products if the labels were corrected. Other plaintiffs said they would buy more products with corrected labels, but did not say they would continue to buy Beyond Meat goods, depriving them of the ability to claim a risk of future deception.
Although Beyond Meat also challenged the plaintiffs’ ability to pursue claims under consumer fraud laws in states where none of them live, Ellis said the concerns were suitable for post-discovery class certification analysis and couldn’t be used to undercut standing at this stage.
Beyond Meat also argued the Food, Drug and Cosmetics Act pre-empts all the claims, meaning the plaintiffs could only pursue certain state-law allegations. It argued the law allows front-label protein content information to be derived from either the nitrogen or PDCAAS methods, whereas the plaintiffs said the nitrogen method is improper.
Ellis said other courts have considered the same question and agreed with the plaintiffs’ position, but she singled out her own 2016 opinion in Gubala v. HBS International Corporation as being resolved in error “upon closer examination of the regulations and a review of subsequent caselaw.”
She agreed with plaintiffs’ position “that because Beyond Meat uses the nitrogen method to make a protein content claim, (the law) requires it to calculate the corrected amount of protein using the PDCAAS method and display that amount as a (percentage of daily value) in the (nutrition facts panel). But the court disagrees that this requirement carries over to the method Beyond Meat must use in calculating the amount of protein displayed on the products’ front labels.”
Ultimately, Ellis agreed with Beyond Meat that the lawsuit seeks to impose requirements beyond the U.S. Food and Drug Administration’s regulatory scheme for implementing the FDCA. She said her “conclusion is further supported by the FDA’s guidance on its webpage concerning front-label claims. In a question-and-answer published in 2022 addressing which method manufacturers should use for protein content claims, the FDA indicated that either the nitrogen or PDCAAS methods may be used to determine compliance for protein content claims and noted that the existence of two methods for compliance was ‘by design.’ ”
Beyond Meat further said the FDCA pre-empted claims regarding protein content even using the nitrogen method because its labels fall within the FDA’s allowable margin of error. But Ellis said that is a factual question not suitable for a motion to dismiss, noting the parties dispute the relevance of whether the protein comes from peas, rice and yeast, as Beyond Meat claims, or result from a mechanical and chemical extraction process, per the lawsuit.
Ellis said Beyond Meat also challenged the plaintiff’s independent testing as failing to meet FDA standards, and while they “implicitly concede they did not conduct” FDA-level testing, Ellis agreed plaintiffs don’t need prove the testing specificity in order to survive a motion to dismiss. She further refused to dismiss remaining state law claims because of her determination the plaintiffs “plausibly alleged violations of the FDA regulations with respect to all but their claims that the front-label protein content claims must use the PDCAAS method.”
Beyond Meat also failed to convince Ellis to dismiss the plaintiffs’ warranty claims and rejected its contention their claims needed to meet common law fraud requirements. However, she did agree to dismiss the fraud-based claims from one plaintiff who challenged whether the products are indeed “all natural, organic and healthy” because the consolidated complaint includes a detailed ingredient list.
Plaintiffs are represented by Milberg Coleman Bryson Phillips Grossman, of Bloomfield Hills, Mich.; Bursor & Fisher, of New York; Sultzer Law Group, of Poughkeepsie, N.Y.; Fegan Scott, of Chicago; Shub Law Firm, of Haddonfield, N .J.; and Lockridge Grindal Nauen, of Minneapolis.
Beyond Meat declined a request for comment.