Plaintiffs, on behalf of a proposed class of consumers, have filed a class action against Baker Mills, Inc. and Kodiak Cakes, LLC, which alleges that the Defendants have deceptively labeled and marketed their Kodiak Cakes by overstating the products’ protein content and quality.

First, Plaintiffs allege that the amino acid testing that they conducted indicates that the products contain 17% less protein than the 14 grams of protein that is claimed (or 11.5 grams). Additionally, Plaintiffs allege that the products contain even less biologically available protein because they contain lower value wheat and pea protein. Furthermore, the nutrition panel does not include the percent daily value of protein as required by federal (and parallel state) regulations when a protein claim is made. See 21 CFR § 101.9(c)(7)(i). And, the percent daily value is required to take into account not only the amino acid content but also its PDCAAS score, which is a method of evaluating protein quality based on human amino acid requirements and amino acid digestibility.

Plaintiffs also allege that Defendants’ website and other marketing materials, which make numerous protein claims, “confirm” Defendants’ intent to mislead consumers regarding the protein content of their products. For example, the website states that “Combining the nourishment of whole grains with the benefits of high-quality protein just makes sense” and describes the products as “Protein-Packed.”

Although not directly at issue here, the case serves as a reminder that internet marketing materials may be considered to be labeling by the FDA, particularly where the marketing materials explain or supplement the product and appear on a company website where the product may be directly purchased by consumers. Keller and Heckman will continue to monitor this case and other food litigation news.