Misbranded Yogurt Suit Dismissed with Prejudice

A California federal court has dismissed with prejudice claims filed against a yogurt maker and its parent company alleging that its Greek style yogurt product was misbranded under federal food regulations. Smith v. Cabot Creamery Coop., Inc., No. 12-4591 (N.D. Cal., decided February 25, 2013). The putative class plaintiffs alleged that the defendants used whey protein concentrate (WPC) and milk protein concentrate (MPC) as “filler material” to “thicken Cabot Greek and increase its protein content, instead of making Greek yogurt the ‘authentic’ way which involves filtering the liquid whey byproduct during the manufacturing process and keeping only the protein-rich solid portion.” They also alleged that the Food and Drug Administration (FDA) forbids the use of WPC and MPC.

The defendants moved to dismiss the claims because they were premised on the alleged unlawful use of these ingredients, arguing that FDA allows WPC and MPC to be used lawfully “as optional ingredients to increase the nonfat solid content of the yogurt, as Cabot did.” In support, the defendants cited an agency interpretation based on a question-and-answer session at a 2004 regional milk seminar. The court agreed that this session was formalized in an FDA Memorandum of Information directed to “All Regional Food and Drug Directors.” According to the court, such interpretations are “entitled to deference, being statements from the FDA about its own regulations. The Court therefore finds that MPC and WPC are permissible optional ingredients in yogurt under FDA regulations.”