Michael A. Kakuk  |  March 16, 2016

Category: Consumer News

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CVS protein powderA class action alleging that CVS Pharmacy deceptively marketed its whey protein powder survived CVS’s latest motion to dismiss. The class action lawsuit claims that CVS misrepresents the amount of actual whey protein in its supplement, because the product is “spiked” with “free form amino acids and other non-protein ingredients.”

Instead of the “26 grams of high-quality protein per serving” listed on the CVS whey protein container, the class action complaint asserts that there are only 21.8 grams per serving of usable protein.

The complaint explains that “To reduce its protein manufacturing costs and enhance the nitrogen content of the Product, Defendant engages in what is commonly referred to as ‘protein-spiking,’ ‘nitrogen-spiking,’ or ‘amino-spiking’: Defendant adds nitrogen-containing, cheap, and less beneficial free form amino acids and non-protein ingredients to the Product, including Asparagine, Hydroxyproline, and the non-amino acid compound Creatine Monohydrate.”

Plaintiff Derek Gubala states in the class action complaint that he purchased a container of CVS whey protein powder for around $20 in 2014, in Illinois. Gubala claims that he relied on the statements CVS made on the outside of the packaging, and had he known the actual protein content of the powder, he would not have paid a premium price for it.

This class action against CVS whey protein powder follows a recent settlement against other whey protein manufacturers based on similar claims. On Dec. 1, 2015, Top Class Actions reported that a lawsuit against Iovate—the maker of Six Star, MuscleTech, EPIQ, and fuel:one protein products—settled for $2.5 million. That action was also based on the company’s practice of using “spiked” ingredients to artificially increase its protein count. As part of that settlement, Iovate agreed to change the way it calculates and labels the protein count on its products.

The CVS whey protein deceptive marketing class action lawsuit was previously filed in November of 2014, and was dismissed by the court in June of 2015 because Gubala’s counsel admitted that the U.S. Food and Drug Administration (FDA) rules allowed for the way CVS calculated its protein content. The judge previously ruled that federal statutes controlled over Gubala’s state-law consumer protection claims, and dismissed them.

However, Gubala filed an amended complaint, which U.S. District Judge Thomas M. Durkin upheld. In the amended lawsuit, Gubala asserts that CVS violated federal statutes and FDA regulations by not calculating the correct amount of protein as a percent daily value on the back of its container.

Although CVS again argued this claim was incorrect, the court agreed that the allegation was plausible to survive the motion to dismiss. In addition, Judge Durkin ruled that calling the product “whey protein powder” could be misleading, “in that it suggests that the protein in the Product is comprised exclusively of pure whey protein, as opposed to whey protein mixed with other non-protein substances.”

Gubala is represented by Joseph J. Siprut and Michael L. Silverman of Siprut PC, Nick Suciu of Barbat Mansour & Suciu PLLC, and Sharon S. Almonrode of Miller Law Firm, P.C.

The CVS Whey Protein Deceptive Marketing Class Action Lawsuit is Derek Gubala v. CVS Pharmacy Inc., Case No. 1:14-cv-09039, in the U.S. District Court for the Northern District of Illinois, Eastern Division.

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