Protein powder is the go-to supplement for health and fitness enthusiasts, especially before and after exercise. Whey protein, either alone or in combination with other proteins, now dominates the market.  But are consumers getting the protein they’re paying for?  A new class action complaint suggests otherwise.  A sports nutrition company has been sued in the U.S. District Court for the Central District of California alleging that two of their whey protein products were misleading buyers as to total protein content.  According to the complaint, consumers were getting 30% less protein than the company claime

The protein content of a supplement product is indirectly determined by testing the nitrogen content of the product. The complaint alleges that in an effort to cut costs, cheaper nitrogen-containing substances were purposely added to the product to inflate the nitrogen content. These substances included free-form amino acids like glycine, glutamine and arginine, the non-protein amino acid taurine, and non-protein ingredients like creatine monohydrate. There’s nothing wrong with these substances; creatine, for example, may offer many health and fitness benefits. However, while these substances may boost a product’s total nitrogen content, it is misleading to consider them to be part of the true protein content of the product. The complaint alleges that this “nitrogen spiking” resulted in testing, labeling and marketing that deceived consumers as to the real protein content.

To illustrate the problem, let’s suppose you buy a jug of whey protein powder. You buy it because the label says whey protein and because it says it contains 30 grams of protein per serving – more than a competing product. You assume that the 30 grams consist of whey protein. You notice that the list of ingredients includes not only whey protein, but also taurine, glycine and creatine. You figure the creatine and individual amino acids are extra benefits. But you might very well be wrong. Some brands are counting those “extras” in the protein count, meaning that the whey protein you’re getting in the product is less–and in some cases substantially less–than the 30 grams that the label would lead you to believe. 

How prevalent was this practice in the industry?  It appears that a number of companies were engaged in the practice, and some still are. Don’t be surprised if we see more class action lawsuits 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 my recent blog on the case). 

Meanwhile, as we wait for more litigation to stamp out this practice, consumers should carefully review the label of a protein supplement before buying it. If you’re buying whey protein powder and you want to maximize the amount of complete protein you’re getting for your money, look for a form of whey protein without the other nitrogen-containing substances, or verify with the brand that any extra amino acids or creatine are not being counted toward the total protein content. 

Rick Collins, Esq., is a recognized legal authority in the field of dietary supplements and performance-enhancing substances.  His law firm, Collins, McDonald & Gann, PC, represents numerous companies in the dietary supplements and sports nutrition industry.  He serves as General Counsel to the International Society of Sports Nutrition and has contributed chapters to two textbooks on sports nutrition.  A frequent contributor to various health and fitness publications, he is a monthly columnist for the nationally circulated Muscular Development magazine and has served for a decade as a member of their Advisory Board.  He maintains a website and blog at www.supplementcounsel.com. 

Posted 7/8/14