2014 saw a rise in consumer lawsuits against makers and distributors of protein supplements. Protein’s benefits are well-documented, as it is integral to muscle growth and helpful in fat loss, as seen in the popularity of the Atkins, Paleo, Primal, and other protein-heavy diets. It is also expensive when compared to other macronutrients – fat and carbohydrates.
In January 2014, Jamie Lewis of Chaos and Pain did his own research and outed companies he accused of “spiking” their protein with amino acids. Based on Lewis’ findings, many companies are diluting their protein with amino acids while charging the consumer for unadulterated product.
First, how is this possible? The general test for evaluating the contents and purity of protein powders examines the total nitrogen within the supplement. Like proteins, amino acids are full of nitrogen – adding them in can increase the supplement’s nitrogen readings, making it appear to be loaded with protein even while its actual protein content is lacking. This also saves manufacturers money, as protein is more expensive than amino acids.
Second, what’s the difference between amino acids and protein? Isn’t protein just a string of amino acids? Yes; that foggy recollection of high school biology is scientifically accurate, but missing key details. Proteins are made up of amino acids, but the amino acids used to spike protein – glycine and taurine – do not come close to delivering the benefits of whole protein.
The end result is paying for four or five pounds of protein, but getting appreciably less than that – and a bunch of cheaper, less-effective amino acids in its place. Think of it as paying for filet mignon, then finding the middle of your filet hollowed out and stuffed with ground beef. For car people, it’s like buying a 3-series and discovering that the BMW engine was swapped out for a Yugo. However you look at it, it’s bad.
There ought to be a law…
The Federal Food, Drug, and Cosmetics Act (“FDCA”), 21 U.S.C. § 301, governs the labeling of food and drugs, among other items. In 1990, Congress enacted the Nutrition Labeling and Education Act, creating uniform food-labeling requirements in the form of the familiar Nutrition Facts Panel. Although dietary supplements – as defined in the FDCA – are generally unregulated, they are subject to the Nutrition Labeling and Education Act’s requirement of bearing a Nutrition Facts Panel. See 21 U.S.C. § 343(s).
Despite the law’s requirements, consumers face an obstacle. The FDA generally has exclusive jurisdiction over enforcement of the FDCA. In fact, the Nutrition Labeling and Education Act prohibited states from adding additional requirements to these labels. 21 U.S.C. § 343-1. Consumers’ only option was to file their own lawsuits – lawsuits that manufacturers typically claimed federal law preempted.
That preemption argument failed earlier this year before the United States Court of Appeals for the Ninth Circuit. In Lilly v. ConAgra Foods Incorporated, the plaintiff contended that ConAgra violated numerous California laws related to unfair competition and false advertising by failing to disclose the sodium found on the inedible shell of sunflower seeds. 743 F.3d 662 (9th Cir. 2014). In response, ConAgra argued that requiring it to account for the sodium found on the seed shell – which ConAgra claimed was inedible – would improperly impose a state-specific burden above the Nutrition Labeling and Education Act’s requirements.
The Ninth Circuit rejected ConAgra’s argument. The appeals court found that the sodium coating the sunflower seeds’ shells was edible under the FDA’s regulations and should have been included in the label. Just as swiftly, the Ninth Circuit dispatched with ConAgra’s preemption argument, stating that the state law requirements Lilly sought to enforce “are thus no different from federal law and not preempted.” Lilly, 743 F.3d at 665. The appeals court remanded the case to the district court for further proceedings.
Lilly calls into question whether the FDCA could be used for a preemption defense of mislabeling claims over spiked protein powder. Mislabeling lawsuits from consumers began cropping up nationwide. Quest nutrition, a prominent manufacturer of protein bars, was sued over allegations that it understates its products’ caloric content. More recently, a consumer class action lawsuit was filed against the parent companies for Body Fortress, a widely available protein supplement, based on allegations that it spiked its products with amino acids, reducing the protein content below its packaging’s claims.
Based on Jamie Lewis’s research, more of these lawsuits can be expected. Manufacturers may have more defenses to these lawsuits as they develop. It appears at this time, though, that the Ninth Circuit has seriously impaired any argument that the FDCA preempts state law claims over misleading labels.
In part 2, we’ll look at the second potential front of legal action against spiked protein.