Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—N.D. Ill.: Protein content labeling on nutrition supplement product not misleading, (Oct 27, 2015)

By Edward L. Puzzo, J.D.

The labeling for a nutrition supplement product that touted a “ultra premium protein blend” was not misleading because the labeling also made clear that other types of protein and other ingredients were included in the product, the federal district court in Chicago has ruled (Gubala v. Allmax Nutrition, Inc., October 26, 2015, Ellis, S.).

Derek Gubala, an Illinois resident, and John Norris, a South Carolina resident, brought a putative class action alleging that Canadian sports nutrition supplement maker Allmax Nutrition, and its wholly-owned subsidiary HBS International, had violated the Food, Drug and Cosmetic Act (FDCA), as amended by the National Labeling and Education Act (NLEA), and the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) by misleading labeling of their “Hexapro” protein supplement product.

Preempted. Plaintiffs did not argue that the Hexapro labeling was misleading because it misrepresented the quantity of protein, but rather because it misrepresented the quality of the protein. Plaintiffs alleged that the phrases “25 grams Protein Per Serving” and “Ultra–Premium 6–Protein Blend” on the Hexapro labeling misled purchasers into believing that all of the 25 grams of protein were derived from the premium protein blend, when in fact less than 18 grams were so derived, with the rest derived from less expensive amino acids which, it was alleged, were incomplete sources of protein and therefore less beneficial for health.

The court found it noteworthy that plaintiffs did not specify how the Hexapro labeling could be altered to remedy its misleading nature. In the view of the court, this could only be done by requiring Allmax to specifically identify each source of protein in its product. However, the court noted, NLEA does not contain such a requirement and the FDA specifically rejected the protein source requirement.

The complaint, the court opined, while drafted as a consumer fraud action, was really an attack on the manner in which the Food and Drug Administration (FDA) permits protein content to be calculated. Accordingly, the court granted defendants motion for the dismissal of the claims on the grounds that the claims were preempted by the NLEA.

Not preempted. Plaintiffs’ complaint could also be read, the court continued, in a way that asserted a claim that was not preempted by NLEA: that the labeling was misleading by causing purchasers to believe that all of the protein in the product was derived from the “Ultra–Premium 6–Protein Blend.” This interpretation would not be preempted by NLEA, the court stated, because it sought to enforce the requirement that a food product not be labeled in such a way as to lead purchasers to believe it was made solely with one ingredient when it was made of multiple ingredients.

However, even this non-preempted argument failed, the court stated, because other labeling on the product—“Decadent Chocolate Milkshake” and “5 Amino Acid Blend” in addition to “6 ultra-high quality proteins”— clearly indicated that the product contained ingredients in addition to the ultra-premium protein blend. Thus, the product labeling did not create a likelihood of deception or have the capacity to deceive, the court ruled.

The case is Civil Action No. 1:14-cv-09299.

Attorneys: Joseph J. Siprut (Siprut PC) for Derek Gubala. Darrell J. Graham (Roeser Bucheit & Graham LLC) for Allmax Nutrition, Inc. and HBS International Corp.

Companies: Allmax Nutrition, Inc.; HBS International Corp.

Cases: StateUnfairTradePractices IllinoisNews