NBTY sued over allegedly pumping up protein claims for whey product

NBTY has been sued over the protein content of its Body Fortress Whey Protein product.

As observers of the class action lawsuit game had predicted, lawsuits based on alleged protein spiking are starting to pile up, and an initial target is one with deep pockets: NBTY.

At least two class actions have been filed against the Ronkonkoma, NY-based supplement manufacturing giant over its Body Fortress Super Advanced Whey Protein. The suits allege that the supplement does not have as much protein as advertised.  

Beating the test?

The issue revolves around the way in which protein content is calculated. A common method is to liberate nitrogen in a product as ammonia  and then measure the ammonia.  In most food and supplement products, protein is the only relevant source of nitrogen. But the amino acids taurine, glycine, arginine and creatine are commonly found in sports nutrition supplements.  While these amino acids may have health benefits of their own, another function of their inclusion can be to provide another source of nitrogen to fool the test into delivering a higher protein reading. Unfortunately, FDA regulations are hazy on the issue and don’t precisely define where the nitrogen used to measure protein should come from.

The lawsuits, one of which has been filed in New York and the other in the District of Columbia, allege this is what is happening in the NBTY product.  The label claims 30 grams of protein per scoop.  The lawsuits allege that independent testing, relying on the nitrogen content of the protein alone,  show the product contains only 21.5 grams.

“I have no knowledge that NBTY is pumping up the protein content in their products. But if something like this is actually going on and plaintiffs law firms get wind that they can substantiate this kind of activity, I expect we will see a lot of these kind of lawsuits. If this is in fact going on it would be a case of clear fraud to the consumer,” Marc Ullman, an attorney in the firm Ullman, Shapiro & Ullman told NutraIngredients-USA.

DIAAS testing method

The lawsutis cite a guidance adopted by the American Herbal Products Association in April for its members to use the Digestible Indispensable Amino Acid Score (DIAAS) method for evaluating protein content on product labels, the method that measures only the nitrogen arising from protein content, not free amino acids. In early August, AHPA also asked FDA to formally adopt this method in its regulations.

Ullman said this new landscape presents significant risk to companies selling products based on high protein content. Law firms will be out there trolling the field to find likely class action targets. There can be viable reasons for having one or more of the four free amino acids listed above in a sports nutrition product, but if those ingredients are present and the product claims a high protein number, that number should be truthful based on the DIAAS test, Ullman said.

“It’s a reminder to take another look at your labels. These lawsuits will turn based on the specific label claims,” he said.

NBTY had not responded to a request for comment by the time of publication.

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