$2.5M Settlement Reached over Iovate Protein-Spiking Claims

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On Monday, a California federal judge issued preliminary approval for a $2.5 million settlement to resolve class action claims that Iovate Health Sciences Inc. spiked its protein supplements with non-protein ingredients.

Lead plaintiff James Eashoo alleged in the class action lawsuit that Iovate participated in a practice referred to as “protein spiking” where the manufacturer adds compounds such as creatine, amino acids and other non-protein ingredients to their Protein Products that falsely showed up as proteins under certain nitrogen-based protein testing methods.

Eashoo originally filed the protein spiking class action lawsuit on March 10, 2015 and filed a First Amended Complaint the following month. The FAC alleged violations of the California Consumer Legal Remedies Act, breach of express warranty, negligent misrepresentation, and violations of California’s false advertising law, the Magnuson-Moss Warranty Act and California’s unfair competition law.

The Iovate class action lawsuit claimed that since non-protein compounds were added into the protein products, the label indicating the amount of protein was artificially inflated, thereby misleading consumers in their purchasing decisions. Additionally, since the protein products like amino acids were allegedly counted as proteins and were also separately listed as amino acids, this allegedly further misled consumers by the “double counting” of ingredients.

U.S. District Judge Judy Beverly Reid O’Connell certified a nationwide Class including any consumers who purchased Iovate’s protein products between March 10, 2011 and the date of the final approval. Consumers who show a receipt for one or more products will be eligible to receive a 100 percent refund of the paid amount, for a total of $300 per household. Those who submit a label as proof of purchase will receive a refund based on the suggested retail price. Consumers without any proof of purchase will receive $10 per product.

According to the Iovate class action settlement documents, the protein products covered by the settlement include any protein supplements distributed by Iovate under any brand name, including Six Star, Epiq, MuscleTech, or fuel:one.

The Class notification will require Iovate to notify potential Class Members by publishing four quarter-page notices weekly in USA Today’s California edition, Internet banners on fitness sites such as Men’s Health and Men’s Fitness as well as a Facebook advertisement targeting users who indicate interests such as bodybuilding and weight training.

The Iovate settlement also provides injunctive relief “that requires Iovate test, measure and disclose the amount of protein in the Protein Products by eliminating amino acids, creatine, and other nitrogen producing non-protein compounds from its protein allegations.” This relief will allow consumers to make proper purchasing decisions as they view an accurate label on Iovate products, according to the settlement.

In June, Iovate filed a motion to dismiss the protein spiking class action lawsuit, claiming that Eashoo’s allegations were preempted by the regulations of the Federal Food, Drug and Cosmetics Act (FDCA) relating to how the protein content is calculated in dietary supplements.

Before Judge O’Connell could rule on the issue, Eashoo and Iovate entered into negotiations via mediation and ultimately reached a settlement agreement through this process.

“When weighed against the risks, costs, delay, and uncertainties of continuing the litigation, the settlement constitutes an excellent result that is fair, adequate, and reasonable, and comports with all of the criteria for preliminary approval,” the settlement documents state.

Eashoo is represented by Daniel L. Warshaw, Bobby Pouya, Matthew A. Pearson and Alexander R. Safyan of Pearson, Simon & Warshaw LLP.

The Iovate Protein Products Class Action Lawsuit is James Eashoo v. Iovate Health Sciences USA Inc., Case No. 2:15-cv-01726, in the U.S. District Court for the Central District of California.

UPDATE: On May 19, 2016, Top Class Actions readers started receiving settlement checks worth as much as $224.96! Congratulations to all our viewers who filed a claim and got PAID!