On July 1, 2014, a consumer class action complaint was filed in the Federal District Court for the Central District of California against a dietary supplement company alleging that two of their whey protein products were misleading consumers as to protein content.  Protein content is indirectly determined by testing the nitrogen content of the product.  The complaint alleges that in an effort to cut costs, cheaper free form amino acids and non-protein ingredients were purposely added to the product to inflate the nitrogen content.  This “nitrogen spiking” resulted in testing, labeling and marketing that deceived consumers as to the real protein content, which according to the complaint was 30% less than claimed (see the full complaint below).

Body Fortress Protein Complaint by CMGlaw

How prevalent was this practice in the industry?  Is it defensible?  It appears that a number of companies were engaged in this questionable practice, and we anticipate more class actions to be filed in the months ahead.  Further, the recent U.S. Supreme Court decision in Pom Wonderful LLC v. Coca-Cola Company may pave the way for nitrogen-spiking litigation under the Lanham Act – companies that don’t spike their protein products could sue those that do for damages based on a theory of unfair competition through deceptive marketing (see our recent blog on the case).  Stay tuned…