The consumer class action, filed on May 31 in Illinois by Adam Sorkin** et al, alleges that Beyond Meat misstates both the total and percentage daily value (%DV) of protein on multiple products.
The lawsuit from Don Lee Farms,*** filed in California on June 2, alleges that Beyond Meat “grossly overstates” the %DV of protein in key products, and falsely presents its products as ‘made without synthetically produced ingredients,’ ‘all-natural’ (a term Beyond Meat no longer deploys on its website), and ‘made from plants,’ despite using ‘synthetic’ ingredient methylcellulose.
While the source material for methylcellulose, a binder used by most leading plant-based burger brands including the Impossible Burger, is made by modifying a natural plant-based substance (cellulose, the fibrous material in plant cell walls), methylcellulose itself “does not occur naturally,” argues Don Lee Farms.
“The scientific literature recognizes that methylcellulose ‘does not occur naturally and is synthetically produced by heating cellulose with a caustic solution . . . and treating it with methyl chloride.’”
Beyond Meat has not addressed the specific claims in the lawsuits, but told this publication that the “allegations in the filings lack merit and we are prepared to vigorously fight this in court.”
A ‘pretty crazy coincidence’
So what do legal experts make of these cases?
Sources FoodNavigator-USA spoke to on Thursday who are not directly involved in the case speculated that Don Lee Farms could be seeking to exert maximum pressure on Beyond Meat to settle its ongoing dispute by drumming up negative publicity ahead of the trial.
One source also noted that “it is not uncommon” for a company planning on suing a rival to tip off a plaintiff consumer class action lawyer to apply further pressure, pointing out that it would be a “pretty crazy coincidence” that two suits on this issue were filed in the same week without the parties working “with at least some kind of background knowledge of each other” given that the lab testing in the cases took place a couple of months ago.
Don Lee Farms declined to comment on the above speculation, but issued a short press release about the case in which it referenced its ongoing litigation with its former partner, featuring the headline, ‘Something is really wrong at Beyond Meat.’
Protein claims a hot topic in food litigation
Protein content is a particularly hot topic when it comes to labeling for plant-based products, partly due to the way percentage daily values are calculated.
Total grams of protein per serving - which many brands now choose to highlight on the front of the pack - can be calculated using a nitrogen-based**** testing method.
However, the percentage of the daily value (%DV) for protein listed on the Nutrition Facts panel for brands making such front of pack protein claims is calculated by a different method (PDCAAS or Protein Digestibility Amino Acid Corrected Score), which ‘corrects’ the total protein figure based on the quality/digestibility of the protein.
This means that two brands which both claim 20g total protein (via nitrogen testing) on the front of pack, could technically have different %DV figures on the back of the label, if they are using different protein sources, and one has a lower PDCAAS score than another.
‘Beyond Meat’s lower PDCAAS scores have caused Defendants to overstate the daily protein value on these flagship products by between 12% and 30%’
As plant proteins such as pea (the main protein in Beyond Meat products) have a lower PDCAAS score than animal proteins such as whey, casein, and egg (which with a PDCAAS of 1.0 are considered the ‘gold standard’ in terms of quality and digestibility), they are often combined with other plant proteins with a different amino acid profile such as rice, in order to increase the overall PDCAAS score.
In the Beyond Meat label cited in Don Lee Farms’ complaint, 20g protein is highlighted on the front of pack, and 40%DV protein on the back, which, alleges the complaint, implies that all 20g of protein is available (40% of the recommended 50g/day is 20g), suggesting a PDCAAS score of 1.0.
According to tests of Beyond Meat products sold at leading retailers by an “independent and internationally accredited food-testing laboratory following AOAC International official methods of analysis,” however, the average PDCAAS scores of Beyond Beefy Crumbles and the Beyond Burger were 0.645 and 0.8875 respectively, claims Don Lee Farms.
If you do the math and correct the protein grams to reflect these PDCAAS figures, argues Don Lee Farms, the %DV protein figure for Beyond Meat beefy crumbles should therefore be 20% (not 26%, as stated on the label), while the %DV protein figure for the Beyond Burger should be 35.49% (and not 40%, as stated on the label).
“Beyond Meat’s lower PDCAAS scores have caused Defendants to overstate the daily protein value on these flagship products by between 12% and 30%.”
Protein content litigation
So what do previous lawsuits about protein claims tell us that could inform this case?
Not a huge amount, said one industry source. While some complaints filed last year reflected confusion as to which of the two testing methods firms should use to calculate front of pack protein nutrient content claims (the FDA seems to have cleared this up recently by saying either is fine), the issue in Don Lee’s complaint focuses on the accuracy of the %DV figure on the back of Beyond Meat’s labels, which it says should always be calculated using the PDCAAS method.
As for the claims about methylcellulose, it is by no means obvious that modifying a natural ingredient (ie. cellulose) using chemicals renders the final ingredient (ie. methylcellulose) “synthetic” or “synthetically produced,” said one legal source, who also noted that the FDA has not (yet) defined natural for food labeling purposes.
That said, given the lack of clarity on this issue, it can be hard to get these kinds of claims dismissed at the pleading stage, he added.
Methylcellulose: Used by high-profile brands including Beyond Meat and Impossible Foods, methyl cellulose is created from cellulose (a natural substance found in plant cells) through heating with a caustic (alkali) solution and treatment with methyl chloride.
The end product is a white odorless powder with attractive gelling and emulsifying capabilities that is soluble in cold water, forms a gel at higher temperatures and holds plant-based meat products such as burgers together as they cook, as well as boosting succulence and juiciness. (The gel is ‘thermo-reversible,’ meaning that when it cools down, it returns to a viscous solution.)
However, it’s not something consumers have in their kitchen cupboards at home and is sometimes cited as evidence of the ‘highly processed’ nature of some plant-based meat products, prompting firms to seek out more consumer-friendly alternatives.
* The legal dispute between Don Lee Farms and Beyond Meat began in May 2017 - three years after the two parties entered into a five-year supply agreement - with Don Lee Farms alleging that Beyond Meat wrongfully terminated the parties’ fixed term contract “under the guise of purported health & safety concerns.”
It went on to accuse Beyond Meat of sharing trade secrets with Don Lee’s rivals to help them “actively solicit” to replace Don Lee as Beyond Meat’s co-manufacturer “at prices more favorable to Beyond Meat” than those agreed in its supply contract with Don Lee.
Don Lee further alleged that Beyond Meat shared with subsequent co-manufacturers the processes for manufacturing Beyond Meat products (processes which Don Lee claims to have developed… although Beyond Meat says it had come up with the processes itself, years before Don Lee started using them - something the judge has recently accepted).
Beyond Meat then countersued, alleging that Don Lee breached its supply agreement by failing to address serious food safety concerns. A trial is set for September 26 in Los Angeles Superior Court.
**Adam Sorkin et al v Beyond Meat Inc. 1:22-cv-02861 filed May 31, 2022, in the US district court for the northern district of Illinois, eastern division.
***Don Lee Farms vs Beyond Meat Inc and Ethan Brown. 2:2 2-cv-03751 filed June 2, 2022, in the US district court, central district of California.
**** Here, protein content is calculated on the basis of the factor of 6.25x the nitrogen content of the food as determined by the appropriate method of analysis as given in the ‘Official Methods of Analysis of the AOAC International’ . . . except when the official procedure for a specific food requires another factor.
