Healthy Bread’s Protein Claims Prompt Lawsuit

Unlike in the ever-popular movie Beetlejuice, repeating the words “Pee-Dee-Kass” thrice will not summon any additional protein into allegedly mislabeled bread products.

But it may still spread fear for manufacturers not including a percent daily value for protein when featuring prominent labeling representations about the amount of protein provided per serving.

Known by its acronym PDCAAS (pronounced Pee-Dee-Kass and standing for the “Protein Digestibility Corrected Amino Acid Score”) and according to the complaint against Dave’s Killer Bread Inc., the FDA’s required method of measuring protein quality combines a protein source’s amino acid profile and the percent digestibility into a score. That score, when multiplied by the total protein quantity, shows how much protein in a product is actually digestible in an available form for humans.

That score is used to find the “corrected amount of protein” able “to support human protein needs,” which, as required by FDA regulations, is to be featured as part of the percent daily value on the nutrition facts panel of food products.

According to one protein-seeking plaintiff in Illinois, a popular manufacturer of a healthful line of bread products ignored those requirements and prominently labeled many of its products with claims that the products provide a specific amount of protein per serving but forewent the requisite percent daily values on its nutrition facts panel.

Wheat, oats, digestibility, and the label statement.

According to the complaint, because the protein sources in the bread products are wheat and oats — ingredients with “low-quality proteins” that typically provide only 40–50% of the protein quantity claimed — the prominent front labeling statements are unlawful and deceptive because they lead consumers to believe they are actually receiving the total amount of protein advertised, when in fact, their bodies are only able to digest about half of it.

Based on those allegations, the plaintiff seeks to certify nationwide and Illinois classes to pursue claims under Illinois’s consumer protection acts, common-law fraud, deceit, and misrepresentation and unjust enrichment. While these types of suits have been popping up across the country, we’ll follow closely to see whether a motion to dismiss is able to put this one into the afterlife waiting room.

Referenced case: Taylor v. Dave’s Killer Bread Inc., No. 1:23-cv-016439 (N.D. Ill. Dec. 1, 2023).

This article is from international law firm Alston & Bird' debriefings selected by Packaging Digest with permission. This and other briefs can be found in the firm’s recently published 14-page Food & Beverage Digest January 2024 online issue that features briefs on New Lawsuits Filed, Motions to Dismiss, Class Certification, Appeals, and Voluntary Dismissals.