Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 1 of 32
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`GUTRIDE SAFIER LLP
`SETH A. SAFIER (State Bar No. 197427)
`MARIE A. MCCRARY (State Bar No. 262670)
`HAYLEY REYNOLDS (State Bar No. 306427)
`100 Pine Street, Suite 1250
`San Francisco, CA 94111
`Telephone: (415) 336-6545
`Facsimile: (415) 449-6469
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`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT FOR THE
`NORTHERN DISTRICT OF CALIFORNIA
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`MOLLY BROWN and ADINA RINGLER,
`as individuals, on behalf of themselves, the
`general public, and those similarly situated,
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`Plaintiffs,
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`v.
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`FOOD FOR LIFE BAKING CO., INC.,
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`Defendant.
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`CASE NO.
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`CLASS ACTION COMPLAINT FOR
`VIOLATION OF THE CALIFORNIA
`CONSUMERS LEGAL REMEDIES ACT;
`FALSE ADVERTISING; FRAUD, DECEIT,
`AND/OR MISREPRESENTATION; UN-
`FAIR BUSINESS PRACTICES; AND UN-
`JUST ENRICHMENT
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`JURY TRIAL DEMANDED
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`Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 2 of 32
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`INTRODUCTION
`1.
`Plaintiffs Molly Brown and Adina Ringler, by and through their counsel, bring this
`class action against Defendant Food For Life Baking Co., Inc. to seek redress for its unlawful and
`deceptive practices in labeling and marketing its consumer food products.
`2.
`Consumers are increasingly health conscious and, as a result, many consumers seek
`foods high in protein. To capitalize on this trend, Defendant prominently labels some of its consumer
`food products as providing specific amounts of protein per serving depending on the product, such
`as “7g PLANT-BASED PROTEIN PER SERVING” on the front of its Ezekiel 4:9 Sprouted
`Flourless Flake Cereal, Raisin. Consumers, in turn, reasonably expect that each product will actually
`provide the amount of protein per serving claimed on the front of the product package.
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`3.
`However, the Food and Drug Administration (“FDA”) recognizes that not all proteins
`are the same in their ability to meet human nutritional requirements. Some proteins are deficient in
`one or more of the nine amino acids essential to human protein synthesis and/or are not fully
`digestible within the human gut. When a human body uses up the least prevalent essential amino
`acid from a food product, protein synthesis shuts down and all of the remaining amino acids from
`that protein source degrade mostly into waste. Likewise, whatever portion of a protein source is not
`digestible is similarly unavailable for protein synthesis. A protein’s ability to support human
`nutritional requirements is known as its “quality.”
`4.
`The FDA required method for measuring protein quality is called the “Protein
`Digestibility Corrected Amino Acid Score”—known by its acronym PDCAAS (pronounced Pee-
`Dee-Kass). It combines a protein source’s amino acid profile and its percent digestibility into a
`discount factor ranging from 0.0 to 1.0 that, when multiplied by the total protein quantity, shows
`how much protein in a product is actually available to support human nutritional requirements. The
`regulations term this the “corrected amount of protein per serving.” 21 C.F.R. § 101.9(c)(7)(ii). For
`example, a PDCAAS of .5 means that only half of the protein in that product is actually available to
`support human protein needs. If the product contained 10 grams total protein per serving, the
`corrected amount of protein would be only 5 grams per serving.
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`Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 3 of 32
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`5.
`Because protein products can vary widely in their ability to support human protein
`needs (even between two comparator products with the same total protein quantity), the FDA
`prohibits manufacturers from advertising or promoting their products with a protein claim unless
`they have calculated the corrected amount of protein per serving based on PDCAAS and provided
`this information to consumers in the Nutrition Facts Panel (“NFP”) in the form of a percent daily
`value (“%DV) for protein. 21 C.F.R. § 101.9(c)(7)(i). The %DV is the corrected amount of protein
`per serving divided by the daily reference value for protein of 50 grams. Id. Using the same example
`of a product containing 10 grams total protein per serving with a PDCAAS of .5, the %DV is 10%
`(5g/50g). Had all of the protein in the product been useful in human nutrition, the %DV would be
`20% (10g/50g).
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`6.
`Accordingly, Defendant’s products are unlawfully, unfairly and deceptively
`misbranded. The protein claims on the front of the package, such as such as “7g PLANT-BASED
`PROTEIN PER SERVING” are unlawful and in violation of parallel state and federal requirements
`because Defendant failed to provide a %DV for protein in the NFP calculated according to the
`PDCAAS methodology.
`7.
`Moreover, because Defendant’s protein claim is in the form of a quantitative amount
`appearing alone, without any information about protein quality, it is also separately actionable as
`misleading. FDA regulations prohibit a manufacturer from stating “the amount or percentage of a
`nutrient” on the front label if it is “false or misleading in any respect.” 21 C.F.R. § 101.13(i)(3). The
`primary protein sources in Defendant’s products is wheat. Wheat is a low quality protein with a
`PDCAAS score between 0.4 and 0.5. Accordingly, although Defendant advertises its products with
`a “7g PLANT-BASED PROTEIN PER SERVING” claim, it actually provides, in a form that
`humans can use, as little as 3g protein, i.e., less than half the protein consumers reasonable expect
`to receive based on the label. This is misleading.
`8.
`Defendant’s unlawful and misleading protein claims caused Plaintiffs and members
`of the class to pay a price premium for the products.
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`Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 4 of 32
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`PARTIES
`9.
`Molly Brown is, and at all times alleged in this Class Action Complaint was, an
`individual and a resident of Novato, California.
`10.
`Adina Ringler is an individual and a resident of Northridge, California.
`11. Molly Brown and Adina Ringler are collectively referred to hereafter as “Plaintiffs.”
`12.
`Defendant Food For Life Baking Co., Inc. (“Defendant”) is a corporation existing
`under the laws of California with its principal place of business in Solana Beach, California, and is
`registered to do business in California.
`JURISDICTION AND VENUE
`13.
`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. § 1332(d)(2). The aggregate amount in controversy exceeds $5,000,000, exclusive of interest
`and costs; and at least one Plaintiffs and Defendant are citizens of different states.
`14.
`The injuries, damages and/or harm upon which this action is based, occurred or
`arose out of activities engaged in by Defendant within, affecting, and emanating from, the State of
`California. Defendant regularly conducts and/or solicits business in, engages in other persistent
`courses of conduct in, and/or derives substantial revenue from products provided to persons in the
`State of California. Defendant has engaged, and continues to engage, in substantial and continuous
`business practices in the State of California.
`15.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a
`substantial part of the events or omissions giving rise to the claims occurred in the state of California,
`including within this District.
`16.
`In accordance with California Civil Code Section 1780(d), Plaintiff Brown
`concurrently files herewith a declaration establishing that, at various times throughout the class
`period, she purchased Ezekiel 4:9 Sprouted Waffles in the Original and Golden Flax flavors and the
`Ezekiel 4:9 Burger Buns in the Sprouted Grains and Sesame flavors from Whole Foods and other
`grocery retailers in Novato, California from approximately 2018 to approximately July 2021.
`(Plaintiff Brown’s declaration is attached hereto as Exhibit A.)
`17.
`Plaintiffs accordingly allege that jurisdiction and venue are proper in this Court.
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`Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 5 of 32
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`SUBSTANTIVE ALLEGATIONS
`18.
`Defendant manufactures, distributes, markets, advertises, and sells a variety of food
`products in the United States under the brand name “Ezekiel 4:9.” Some of these products, including
`cereals, waffles, pasta, buns, and English muffins have packaging that predominately, uniformly,
`and consistently states on the principal display panel of the product labels that they contain and
`provide a certain amount of protein per serving. Plaintiffs have attached as Exhibit B a non-exhaus-
`tive list of the Ezekiel 4:9 products that make protein claims on the front of the product packages.
`The products listed in Exhibit B, and any other Ezekiel 4:9 brand product that claims a specific
`amount of protein on the front of its label, will hereinafter be referred to as the “Products.”
`19.
`The representation that the Products contain and provide a specific amount of protein
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`per serving was uniformly communicated to Plaintiffs and every other person who purchased any of
`the Products in California and the United States. The same or substantially similar product label has
`appeared on each Product during the entirety of the Class Period in the general form of the following
`example:
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`20.
`The nutrition facts panel on the Products uniformly and consistently failed to provide
`any referenced percent daily value of the Products’ protein content throughout the Class Period. The
`nutrition facts panel of the Products has appeared consistently throughout the Class Period in the
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`general form of the following example:
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`21.
`As described in detail below, Defendant’s advertising and labeling of the Products as
`containing and providing specific amounts of protein per serving is unlawful, misleading, and in-
`tended to induce consumers to purchase the Products at a premium price, while ultimately failing to
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`meet consumer expectations. These representations deceive and mislead reasonable consumers into
`believing that a serving of the Products will provide the grams of protein as represented on the label,
`when in fact, correcting for the Products poor protein quality through PDCAAS, the amount pro-
`vided will be approximately half or less because Defendant uses proteins of low biological value to
`humans in its products, such as wheat.
`Consumer Demand for Protein
`22. Many American consumers are health conscious and seek wholesome, natural foods
`to keep a healthy diet, so they routinely rely upon nutrition information when selecting and purchas-
`ing food items. This is especially true in the community of athletes, registered dietitians, and coaches,
`to which Defendant markets. As noted by FDA Commissioner Margaret Hamburg during an October
`2009 media briefing, “[s]tudies show that consumers trust and believe the nutrition facts information
`and that many consumers use it to help them build a healthy diet.” Indeed, the FDA recommends
`relying on Nutrition Facts Labels as the primary tool to monitor the consumption of protein.1
`23.
`Protein is found throughout the body—in muscle, bone, skin, hair, and virtually every
`other body part or tissue. The health benefits of protein are well studied and wide ranging. Scientific
`studies have confirmed that protein can assist in weight loss, reduce blood pressure, reduce
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`1 FDA Protein Fact Sheet, https://www.accessdata.fda.gov/scripts/InteractiveNutritionFactsLa-
`bel/factsheets/Protein.pdf
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`cholesterol, and control for risk factors for cardiovascular diseases. The National Academy of Med-
`icine recommends that adults get a minimum of .8 grams of protein for every kilogram of body
`weight per day, or just over 7 grams for every 20 pounds of body weight.2 For a 140-pound person,
`that means about 50 grams of protein each day. For a 200-pound person, that means about 70 grams
`of protein each day.
`24.
`Athletes and fitness enthusiasts typically consume much higher amounts of protein
`each day; typically between 1 to 1.5 grams of protein for every pound of body weight.
`25.
`The health benefits of protein are just as important, if not more important, for chil-
`dren. Children are in a relative state of constant growth and rely on protein as the building block of
`muscle, bone, skin, hair, and virtually every other body part or tissue. The National Academies of
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`Science recommends the following amounts of daily intake of protein based on age group: 1-3 years
`old: 13 g of protein per day; 4-8 years old: 19 g of protein per day; 9-13 years old: 34 g of protein
`per day.3
`26.
`Protein quantity by itself does not tell the full story from a human nutritional stand-
`point. A protein’s quality is also critical because humans cannot fully digest or utilize some proteins.
`Proteins are not monolithic. They are simply chains of amino acids, and different types of amino
`acids chained together in different ways will make different types of proteins. Further, the makeup
`of the protein changes the function of that protein in the human body, and certain types of proteins
`are more easily digested and used by humans than others.
`27.
`All of a human’s proteins are formed through the process of protein synthesis within
`their own bodies. That is, although humans consume dietary proteins, they digest those proteins,
`break them down into their constituent amino acids, and then use those amino acids as building
`blocks to synthesize the human proteins necessary for life, tissue repair, and other functions. Of the
`twenty total amino acids, humans can produce only eleven of them on their own. Humans cannot
`produce, under any circumstances, nine of the amino acids required for protein synthesis. These nine
`amino acids are called the “essential amino acids” and they must be supplied through the diet.
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`2 National Academies of Medicine. Dietary Reference Intakes for Energy, Carbohydrate, Fiber,
`Fat, Fatty Acids, Cholesterol, Protein, and Amino Acids (Macronutrients).
`3 Id.
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`28.
`All nine essential amino acids are necessary for protein synthesis to take place. Lack-
`ing even one essential amino acid will prevent protein synthesis from occurring, and the rest of the
`proteins will degrade into waste. Accordingly, once the body uses up the limiting essential amino
`acid from a protein source, the remainder of that protein becomes useless to human protein synthesis
`and has little nutritional value. As the FDA has explicitly recognized, “[b]ecause excess amino acids
`are not stored in the body, humans need a constant supply of good quality dietary proteins to support
`growth and development.” 58 Fed. Reg. 2079 at 2101. High-quality proteins, therefore, are those
`that contain all nine essential amino acids because they have a greater effect on protein synthesis
`and are fully digestible. A dietary protein containing all of the essential amino acids in the correct
`proportions is typically called a “complete protein.”
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`29.
`A protein source’s digestibility also affects the amount of useable protein a person
`receives from consuming it. Many plant-based proteins are only 85% digestible, meaning 15% of
`the protein from that source will simply pass through the body without ever being absorbed at all.
`30.
`As the FDA has stated in official guidance, “Accurate methods for determining pro-
`tein quality are necessary because different food protein sources are not equivalent in their ability to
`support growth and body protein maintenance.” 56 Fed. Reg. 60366, § B. The Protein Digestibility
`Corrected Amino Acid Score (“PDCAAS”) is the FDA mandated measure of protein quality, and it
`accounts for both the amino acid profile and the digestibility of the protein. 21 C.F.R. §
`101.9(c)(7)(ii). The PDCAAS method requires the manufacturer to determine the amount of essen-
`tial amino acids that the food contains and then combine that into a discount factor score based on
`humans’ ability to digest the amino acid profile.
`31.
`Defendant uses plant-based proteins in its products. Because of the differences in
`benefits depending on the amino acid composition of a protein, the source of protein is important.
`Whey protein is animal-based and contains all nine essential amino acids. It has a high biological
`value and is fully digestible by humans. Thus, whey protein has a PDCAAS of 1.0. Plant protein
`contains higher levels of antioxidants, but rarely contains all nine essential amino acids. Further,
`plant proteins, such as wheat proteins, which Defendant uses in its Products according to the ingre-
`dient lists, are not fully digested by humans. Both types of proteins also typically have a PDCAAS
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`of between 0.4 and 0.5, meaning only 40-50% of the protein from those sources will be digested and
`available to humans.
`32.
`Accordingly, Defendant’s use of low quality proteins, even in combination with some
`higher quality proteins, means that they actually provide far less protein to humans than the Product
`labels claim.
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`Federal and State Regulations Governing Food Labeling
`33.
`Identical federal and California laws regulate the content of labels on packaged food.
`The requirements of the federal Food, Drug & Cosmetic Act (“FDCA”), and its labeling regulations,
`including those set forth in 21 C.F.R. §§ 101, 102, were adopted by the California legislature in the
`Sherman Food Drug & Cosmetic Law (the “Sherman Law”). California Health & Safety Code §
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`110100 (“All food labeling regulations and any amendments to those regulations adopted pursuant
`to the federal act, in effect on January 1, 1993, or adopted on or after that date shall be the food
`labeling regulations of this state.”). The federal laws and regulations discussed below are applicable
`nationwide to all sales of packaged food products. Additionally, no state imposes different require-
`ments on the labeling of packaged food for sale in the United States.
`34.
`According to FDA regulations, “[a] statement of the corrected amount of protein per
`serving, as determined in paragraph (c)(7)(ii) of this section, calculated as a percentage of the RDI
`or DRV for protein, as appropriate, and expressed as a Percent of Daily Value . . . shall be given if
`a protein claim is made for the product . . .” 21 C.F.R. 101.9(c)(7)(i) (emphasis added). Further,
`FDA regulations require the %DV to be calculated using PDCAAS, a method that accounts for both
`protein quantity and protein quality. 21 C.F.R. § 101.9(c)(7)(ii); FDA Food Labeling Guide, p. 29,
`Question N.22. 4 The first step is to calculate the “corrected amount of protein per serving” by mul-
`tiplying protein quantity by the PDCAAS quality value, and then dividing that “corrected amount”
`by 50 grams (the “recommended daily value” for protein) to come up with the %DV. Id.
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`4 Guidance for Industry: A Food Labeling Guide (“FDA Food Labeling Guide”) p. 29, Question
`N22, U.S. Food & Drug Administration, https://www.fda.gov/media/81606/download (last ac-
`cessed February 18, 2020).
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`35.
`Defendant’s products all make protein claims on the front label, but fail, uniformly
`to provide a %DV for protein in the NFP. The protein claim on the front is, therefore, unlawful, and
`was never permitted to be on the label in the first instance.
`36.
`In addition to regulating the NFP, the FDA has promulgated a separate set of regula-
`tions that govern nutrient content claims on the front of a package. 21 C.F.R. § 101.13. A nutrient
`content claim is a claim that “expressly or implicitly characterizes the level of a nutrient.” 21 C.F.R.
`§ 101.13(b). “Express” nutrient content claims include any statement outside the Nutrition Facts
`Panel, about the level of a nutrient. 21 C.F.R. 101.13(b)(1); 21 C.F.R. § 101.13(c). Stating infor-
`mation from the nutrition facts panel (such as grams protein per serving) elsewhere on the package
`necessarily constitutes a nutrient content claim. 21 C.F.R. § 101.13(c).
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` manufacturer cannot make a nutrient content claim in the form of a “statement
`about the amount or percentage of a nutrient” if the statement is “false or misleading
`in any respect.” 21 C.F.R. 101.13(i)(3).
`37.
`Under the FDCA, the term false has its usual meaning of “untruthful,” while the term
`misleading is a term of art that covers labels that are technically true, but are likely to deceive con-
`sumers.
`38. While a required statement inside of the NFP escapes regulations reserved for nutri-
`ent content claims (21 C.F.R. § 101.13(c)), the identical statement outside of the NFP is still consid-
`ered a nutrient content claim and is therefore subject to 21 C.F.R. § 101.13(i)(3). 21 C.F.R. §
`101.13(c). Indeed, the Ninth Circuit has specifically held that “a requirement to state certain facts in
`the nutrition label is not a license to make that statement elsewhere on the product.” Reid v. Johnson
`& Johnson, 780 F.3d 952, 960 (9th Cir. 2015). Thus, Defendant’s quantitative protein claims on the
`front label are subject to analysis as a nutrient content claim and cannot be false or misleading in
`any manner.
`39. Moreover, the FDA has explained in published guidance that that “Information on
`protein quantity alone can be misleading on foods that are of low protein quality” and that “nutrition
`labeling must allow consumers to readily identify foods with particularly low quality protein to pre-
`vent them from being misled by information on only the amount of protein present.” 58 Fed. Reg.
`2079 at 2101-2.
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`Class Action Complaint
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`Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 11 of 32
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`40.
`Defendant’s protein representations on the front package are misleading for this very
`reason. They broadly tout protein quantity alone while ignoring that the poor quality proteins in the
`Products will provide far less useable protein than claimed. The claim on the front is therefore sep-
`arately misleading and should never have appeared on the package.
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`Defendant’s Marketing and Labeling of its Products Violates State and Federal Food
`Labeling Laws
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`41.
`Defendant’s Products are unlawful, misbranded, and violate the Sherman Law,
`California Health & Safety Code § 110660, et seq. Defendant makes protein content claims on the
`front of its Product packages and yet has left the Percent Daily Value column of its nutrition facts
`for protein completely blank in violation of applicable nutrition labeling regulations. Further, the
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`front label is also independently misleading. Each Products’ label states that it provides a specific
`amount of protein per serving—such as “7g PLANT-BASED PROTEIN PER SERVING” for the
`Ezekial 4:9 Sprouted Flourless Flake Cereal in Raisin flavor—when, in fact, after adjusting the
`protein content based on PDCAAS, the products will provide approximately half that much protein.
`42.
`Defendant’s marketing, advertising, and sale of the Products violates the false adver-
`tising provisions of the Sherman Law (California Health & Safety Code § 110390, et. seq.), includ-
`ing but not limited to:
`a. Section 110390, which makes it unlawful to disseminate false or misleading food
`advertisements that include statements on products and product packaging or labeling
`or any other medium used to directly or indirectly induce the purchase of a food
`product;
`b. Section 110395, which makes it unlawful to manufacture, sell, deliver, hold or offer
`to sell any falsely or misleadingly advertised food; and
`c. Sections 110398 and 110400, which make it unlawful to advertise misbranded food
`or to deliver or proffer for delivery any food that has been falsely or misleadingly
`advertised.
`43.
`Defendant’s marketing, advertising, and sale of the Products violates the misbranding
`provisions of the Sherman Law (California Health & Safety Code § 110660, et. seq.), including but
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`Class Action Complaint
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`Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 12 of 32
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`not limited to:
`a. Section 110665 (a food is misbranded if its labeling does not conform with the
`requirements for nutrition labeling as set forth in 21 U.S.C. Sec. 343(q));
`b. Section 110705 (a food is misbranded if words, statements and other information
`required by the Sherman Law to appear food labeling is either missing or not
`sufficiently conspicuous);
`c. Section 110760, which makes it unlawful for any person to manufacture, sell, deliver,
`hold, or offer for sale any food that is misbranded;
`d. Section 110765, which makes it unlawful for any person to misbrand any food; and
`e. Section 110770, which makes it unlawful for any person to receive in commerce any
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`food that is misbranded or to deliver or proffer for delivery any such food.
`44.
`Defendant has violated 21 U.S.C. § 343(a), and the standards set by FDA regulations,
`including but not limited to 21 C.F.R. § 101.9 (c)(7), which have been incorporated by reference in
`the Sherman Law, by failing to include on their product labels the nutritional information required
`by law.
`45.
`A reasonable consumer would expect that the Products provide what Defendant
`identifies them to provide on the product labels and that the labels would not be contrary to the
`policies or regulations of the State of California and/or the FDA. For example, a reasonable
`consumer would expect that when Defendant labels its Products with “7g PLANT-BASED
`PROTEIN PER SERVING” per serving, as it claimed on the Ezekiel 4:9 Sprouted Flourless Flake
`Cereal (Raisin) label, the Products would provide 7 grams of protein per serving in a form their
`bodies could use as protein.
`46.
`Consumers lack the meaningful ability to test or independently ascertain the truthful-
`ness of Defendant’s food labeling claims, especially at the point of sale. Reasonable consumers do
`not walk around with the PDCAAS values for various protein sources stored in their heads. They
`would not know the true amount of protein the Products provide nutritionally merely by looking
`elsewhere on the product package. Its discovery requires investigation well beyond the grocery store
`aisle and knowledge of food chemistry beyond that of the average consumer. An average consumer
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`Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 13 of 32
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`does not have the specialized knowledge necessary to ascertain that a serving of a Product does not
`provide the number of grams of protein that is represented on the front of the product package. An
`average consumer also lacks the specialized knowledge necessary to determine the PDCAAS for the
`Products. The average reasonable consumer had no reason to suspect that Defendant’s representa-
`tions on the packages were misleading. Therefore, consumers had no reason to investigate whether
`the Products actually do provide the amount of protein per serving that the labels claim they do and
`reasonably relied on Defendant’s representations regarding the nature of the Products.
`47.
`Defendant intends and knows that consumers will and do rely upon food labeling
`statements in making their purchasing decisions. Label claims and other forms of advertising and
`marketing drive product sales, particularly if placed prominently on the front of product packaging,
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`as Defendant has done with the claims on the Products that they contain and provide specific
`amounts of protein per serving.
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`Defendant Misleadingly Markets Its Products to Increase Profits and Gain a Competitive
`Edge
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`48.
`In making false, misleading, and deceptive representations, Defendant distinguishes
`its Products from its competitors’ products. Defendant knew and intended that consumers would
`purchase, and pay a premium for, products labeled with a protein claim. By using this branding and
`marketing strategy, Defendant is stating that its Products are superior to, better than, and more nu-
`tritious and healthful than other products that do not make protein claims, or that do not mislead
`consumers about the amount of protein their products actually provide.
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`Defendant Intends to Continue to Market its Products as Containing More Protein than the
`Products Actually Contain
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`49.
`Because consumers pay a price premium for products that make protein claims, and
`also pay a premium for products that provide more protein, by labeling its Products as containing
`more grams of protein per serving than they actually provide, Defendant is able to both increase its
`sales and retain more profits.
`50.
`Defendant engaged in the practices complained of herein to further its private inter-
`ests of: (i) increasing sales of its Products while decreasing the sales of competitors that do not
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`-12-
`Class Action Complaint
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`Case 3:21-cv-10054-SK Document 1 Filed 12/29/21 Page 14 of 32
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`misrepresent the number of grams of protein contained in its products, and/or (ii) commanding a
`higher price for its Products because consumers will pay more for these Products due to consumers’
`demand for products containing more protein.
`51.
`The market for protein products is continuing to grow and expand, and because De-
`fendant knows consumers rely on representations about the number of grams of protein in food
`products, Defendant has an incentive to continue to make such unlawful and misleading representa-
`tions. In addition, other trends suggest that Defendant has no incentive to change its labeling prac-
`tices.
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`52.
`For example, one market analysis revealed that between 2013-2017, product launches
`with a protein claim grew 31%.5
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`53.
`To capitalize on the growing market, Defendant continues to launch new product
`lines and flavors to diversify its portfolio to maintain its competitive edge. Moreover, Defendant has
`continued to replicate its misrepres