Defendant manufactures, markets and sells the Product, “The Complete Cookie,” on its own retail website and in retail outlets, including health food stores and nutritional supplement stores, throughout the United States. The Product is marketed as “quality baked goods that not only taste great, but also contain healthy amounts of beneficial protein.” Defendant has positioned the Product in the protein product marketplace, a marketplace that expects sales of protein products in general to grow 62% and reach U.S. $7.8 billion by 2018.2
Defendant claims that the Product has “16g of protein … in every 4 oz cookie” and claims that the Product was developed “as a better way to feed your muscles while enjoying something tasty.” Indeed, Defendant’s website boasts: “Protein is what we’re all about! We have spent years perfecting our unique blend of naturally occurring [sic] vegetable proteins …” and Defendant markets the Product under the slogan “Make protein fun and delicious.” Defendant repeats these protein content claims on the Product labeling stating that there are “16g Protein per cookie”:
According to the complaint, Defendant’s labels grossly inflate the actual protein content of the Product. Independent testing determined the protein levels to be far below the amount of protein claimed on the Product’s label. Based on Plaintiff’s testing, the Product commonly contains between only 4 and 9 grams of protein per 4 oz cookie, far below the 16 grams of protein content claim made by Defendant. In short, Defendant is marketing a high protein cookie that simply doesn’t deliver on the promised protein content.