FDA regulations governing how a food or nutritional supplement manufacturer is to calculate the protein content of its product for disclosure in the FDA-required nutritional information panel in the label preempts a claim under California’s UCL arguing that defendant improperly “spiked” (i.e., inflated) the tested protein content of its product by including nitrogen-rich, non-protein substances in the product.  However, the FDA regulations did not preempt plaintiff’s other false advertising theory which was that the product label falsely stated that all the protein in the product came from hydrolyzed beef protein and lactoferrin when in fact much of the measured protein content came from the nitrogen-spiking agents.

Ninth Circuit Court of Appeals (Berzon, J.); October 12, 2018; 2018 U.S. App. LEXIS 28771