Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office

In Fernandez v. Atkins Nutritionals, Inc., No. 3:17-cv-01628, 2018 WL 280028 (S.D. Cal. Jan. 3, 2018), the plaintiff claims that the defendant misleadingly labels its snack products with regard to their "net" carbohydrate content. In particular, the plaintiff alleges that Atkin's method of calculating net carbs conflicts with medical science and Dr. Atkins' own writings to the effect that only fiber should be deducted from the calculation of net carbohydrates, whereas sugar alcohols such as maltitol are also deducted. The court determined that federal law does not pre-empt the plaintiff's state law claims to the extent that her claims are based on the defendant's failure to state on its labeling how it calculates net carbs but does pre-empt the plaintiff's attempt to utilize state law to prescribe a particular method of calculating net carbs. The court ruled that its net carbs claims are nutrient content claims governed by the Nutrition, Labeling and Education Act. As such, they are permitted only if they are not false or misleading and adequately explain the formula for calculating net carbs. Taking the facts alleged in the complaint as true, the court would not dismiss the plaintiff's claim. The court also declined to dismiss the case under the primary jurisdiction doctrine on the grounds that the issue presented does not require resolution of an issue of first impression, nor is it a particularly complicated issue that Congress has committed to a regulatory agency. Last, the court declined to dismiss the lawsuit under Rule 9(b) as failing to meet the heightened pleading standard because the plaintiff adequately identified the label claim at issue, where the statement was made, why it was fraudulent and how it affected the plaintiff. However, the court did dismiss the plaintiff's claim of breach of the implied warranty of merchantability under California law because the allegations in the complaint do not identify any "promise or affirmation" to which the defendant's products did not conform. In addition, the court dismissed the plaintiff's Magnuson-Moss Warranty Act claim because the plaintiff failed to identify a written warranty or any breach of an implied warranty under California law.

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