The first of what I suspect will be many class action lawsuits related to protein spiking has been filed:

The defendant in this case is NBTY, although I suspect (hope) we will see similar suits filed against many of their competitors.

I’ve mentioned protein spiking in the past:

“Cheap aminos like glycine are used to pad the protein content of otherwise expensive whey. So if a pound of whey comes in at $6, and a pound of glycine is a $2, maybe two to three grams of the latter are put in the former. Since it’s an amino and not a whole protein, it’s providing those grams at a much lower cost, and doesn’t appear on the label as another protein form…”

[A more specific description can be found here, in a piece I wrote just prior to this case being filed…and this is a particularly expansive piece on the topic, although not authored by me]

Most of the companies who became aware of this potential lawsuit have consoled themselves with the fairy tale that they were labeling their nutritional facts in accordance with the applicable laws, and that there private cause of action is generally thought to be preempted under the FDCA (we will see these claims revisited in the first filings from NBTY, where they will assert them in a motion to dismiss, along with a likely reference to puffery and improper jurisdiction). However, although everyone knows that protein spiking is at the center of this lawsuit, that’s only one part of the puzzle – and I believe the motion to dismiss will fail.

In this specific action, the defendants are NBTY, Inc., United States Nutrition, Inc., and Healthwatchers, Inc., and the product being called into question is Body Fortress Super Advanced Whey Protein & Super Advanced Whey Isolate. What is claimed, is that after testing of the product Super Advanced Whey, the thirty (30) grams of whey protein they claim on the label is actually 21.5 grams.

While a court of law will settle the claims raised in this class action, the court of public opinion (we’re currently in session) will be far more damaging…they let things go too far, and now that the lawsuit is in the public domain, we’ve has been made aware of the inferiority of their product. A bolus dose of whey protein has been established at 20 grams. That’s the amount I personally ingest – if I found out that I’d been ingesting 75% of that (clinically determined to be far inferior on a dose/response curve for myogenesis), I’d be pissed – because this is the dose I’ve been using for years.

In this particular case, Body Fortress is charging you for 30 grams of whey protein (right? it only says “whey protein” on the front of the jug…), but you’re actually getting 21.5 grams (of protein, i.e. bonded amino acids) – and another 8.5 grams of cheap unbound aminos that are unlikely to have any anabolic effect, per se. They also conflate the terms “premium protein” and “premium whey protein” – which completely misleads the average consumer (and since when are cheap, unbound aminos “premium”?).  So while the protein count might be allowable in some interpretations of federal code, just calling your product whey protein when it’s 1/3rd NOT whey protein, is certainly not allowed. It’s also been established through numerous decisions that proper labeling and/or advertising does not abrogate improper labeling and advertising elsewhere, nor does a disclaimer.

Is this a huge deal? After all, whey protein is made up of aminos, so it’s basically the same thing, right? Wrong. (See what I did there – I knew the answer all along!) In study after study, whey protein has been found to have completely disparate effects when compared to aminos, even BCAAs and EAAs. They’re not the same at all, even though one is found in the other. Water is used to mix cement, but we wouldn’t say that the sidewalk has many similarities to the ocean – we can’t take the quality of a finished product and ascribe its qualities to an isolated constituent. Even worse is that most of the studies showing aminos to be different (usually inferior, except in the case of Leucine) than whey, were done with EAAs and BCAAs – which isn’t what companies are using to spike. What companies are using to spike is whatever is cheapest, and certainly not anything like Leucine or other BCAAs. They sole purpose for doing this, is to increase profit margins – there is literally no other excuse for it – and for that, I have no sympathy; If you knowingly release an inferior product simply to see more zeros in your bank account, I won’t be crying myself to sleep when you get sued.

This lawsuit is additionally warranted when we consider the fact that the company in question is party to a trade organization who opposes the practice of protein spiking – which tells me that the organization is toothless when it comes to affecting (note the proper use of the word) real change in the industry.

Moreover, the terms “protein” and “whey protein” are used interchangeably in the labeling and marketing of this product, when in fact, as found in the product, they are not interchangeable. That puts the case firmly into the ballpark of false advertising and related consumer protection acts. Therefore, the class action isn’t an attempt at private enforcement of the FDCA or DSHEA, but instead relies on the False Advertising, Unfair Competition, and The Consumer Legal Remedies Act, Unjust Enrichment, and the Deceptive and Unfair Trade Practices Act. This ought to cause some sleepless nights among the C-suite of companies who have engaged in this process, because it’s open season – and although this is the first case we’ve seen filed, the firm representing the class can be contacted about other protein powders, to investigate and file against them as well (if warranted). If you buy protein powder, you should give them a shout – there are a lot of brands who spike, and I know if I were paying for inferior aminos instead of whey protein (especially knocking 8.5 grams off my 30 grams of whey!), I’d want that money back. Also, it helps even the playing field for honest companies – because it serves to strip the profit away from people who want to put a ton of worthless aminos in a product and still call it “whey.” There is a ton of potential for Lanham Act lawsuits here, for companies who were not spiking, to recoup some money from those who have been – again, I’d contact the firm who’s been spearheading this.

Perhaps the most disheartening aspect of this case is

Finally, with regards to the specific products at the heart of this class action, I’d have to say that it’s particularly obnoxious that they claim to provide 60 grams of “ultra pure”  protein in two scoops, when in actuality, 17 grams of that “protein” is essentially nitrogen rich filler – and by filler, I mean something that will fill their bank accounts with your money.

 

 

 

 

 

 

 

 

There are a lot of good reasons to get involved with this lawsuit, and to contact the firm who initiated it, because while this particular case is about one brand, there will be a domino effect and other brands will invariably find themselves defendants in similar actions (so whatever protein you use, it’s worth your time to call the firm and see if you can maybe recoup a bit of the money you were paying for stuff that isn’t building any muscle).

 

http://www.ironmagazine.com/2014/protein-spiking-what-it-is-and-what-you-can-do-about-it/

 

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