DANIELLA LOPEZ, DAVID FREIFELD, AND CRYSTAL PATERSON, individually,
and on behalf of themselves and those similarly situated, Plaintiffs,
v.
LINUS TECHNOLOGIES, INC. D/B/A DAVID PROTEIN, Defendant
INTRODUCTION
1. Plaintiffs Daniella Lopez, David Freifeld, and Crystal Paterson (“Plaintiffs”) by and through their counsel, bring this class action against Defendant Linus Technologies, Inc. d/b/a David Protein (“Defendant”) to seek redress for its unlawful and deceptive practices in labeling and marketing the calories and fat content in its consumer food products.
2. Consumers are increasingly health conscious and, as a result, many consumers seek foods low in calories and fat content, which provide a variety of known health benefits including but not limited to, weight loss, lower cholesterol and blood pressure, lower blood sugar and muscle mass maintenance, energy, and overall positive health impacts.
3. Defendant knows consumers are mindful of the number of calories and grams of fat they consume, and thus, calories and fat content is a material driver in the purchase of products promoting low calories. Thus, Defendant prominently labels its protein bar products—including Chocolate Chip Cookie, Cinnamon Roll, Fudge Brownie, Red Velvet, Peanut Butter Chocolate Chunk, Blueberry Pie, Pumpkin Spice, Cake Batter flavored bars (hereinafter, the “Product(s)” with the specific number of calories and fat per serving on the Products’ front labels and/or in the Nutrition Fact Panel (“NFP”). Consumers, in turn, reasonably expect that each Product will
actually provide the amount and percentage daily value of calories and fat per serving stated on the Product package. However, as detailed herein, Defendant misrepresents the calories and fat content on each of the Products.
4. The Food and Drug Administration (“FDA”) regulations require that the caloric content per serving is expressed to the nearest 5-calorie increment up to and including 50 calories, and 10-calorie increment above 50 calories, except that amounts less than 5 calories may be expressed as zero, on a food product’s NFP.2
5. FDA regulations permit that the caloric content in a food can be calculated using one of six methods of calculating caloric content of foods.3 A “safe-harbor” provision allows the “total number of calories” measured by any of the six methods to be as much as 20% greater than the calorie content listed on a label.4 Among the methods by which a manufacturer may determine caloric content is the Atwater factors.
5 The Atwater factors is widely used to determine caloric content in food by which the food is assigned 4 calories for 1 gram of carb, 9 calories for 1 gram of fat, and 4 calories for 1 gram of protein. Accordingly, food producers, such as Defendant, must ensure that their products actually contain the number of calories listed on their labels.
