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NBTY Inc. and United States Nutrition Inc. deceptively under-fill packages of their protein products, according to a class action lawsuit filed in California federal court earlier this month.
According to the slack-fill class action lawsuit, NBTY and United States Nutrition intentionally package their Body Fortress and Pure Protein products in opaque containers that are significantly under-filled.
“Consumers, in reliance on the size of the containers, paid a premium price for the Products, which they would not have purchased had they known that the containers were substantially empty,” the protein supplement class action lawsuit states.
The products named in the slack-fill class action lawsuit include: Body Fortress – Super Advanced Whey Protein, Body Fortress – Super Advanced 100% Protein Isolate, Body Fortress – Super Advanced Mass Gainer, Body Fortress Energy Protein, Pure Protein – 100% Whey Protein, Pure Protein – Daily Fit Powder, Pure Protein – Natural Whey, Pure Protein – Plus, and Pure Protein – Body Shaping Formula.
Plaintiffs Matthew Gates and Carlos Solis claim they purchased the companies’ Pure Protein and Body Fortress protein based on the products’ packaging. According to the protein supplement class action lawsuit, they were unaware that the packaging was oversize and contained nonfunctional slack-fill.
“Plaintiffs purchased Defendants’ Products, and expected to receive full containers of product,” Gates and Solis state in their protein supplement class action lawsuit. “Plaintiffs were surprised and disappointed when they opened the Products to discover that they containers had more than 37% empty space, or slack-fill.”
According to the protein supplement slack-fill class action lawsuit, a two-pound container of Pure Protein – Whey Protein sells for approximately $28.52 on amazon.com, and a two-pound container of Body Fortress – Super Advanced Whey Protein sells for about $17.94.
Gates and Solis say they would not have purchased the premium-priced protein products if they had known the packages were deceptively under-filled. They state that they, along with other consumers, rely on the size of a product’s packaging when making purchasing decisions.
Because the protein products are packaged in opaque containers, consumers have no way of knowing the containers are significantly under-filled before they purchase the product. According to the Body Fortress class action lawsuit, consumers are tricked into thinking they are getting more product than they actually receive.
“There is no practical reason for the non-functional slack-fill used to package the Products other than to mislead consumers as to the actual volume of the Products being purchased by consumers,” the Pure Protein class action lawsuit alleges.
By filing the deceptive packaging class action lawsuit, Gates and Solis seek to represent a Class of consumers who purchased Body Fortress and/or Pure Protein products that were packaged in containers that included non-functional slack-fill.
They seek to represent a nationwide Class as well as a New York and California subclass.
Gates and Solis charge the defendants with violations of California’s Consumer Legal Remedies Act, Unfair Competition Law, False Advertising Law, New York’s Deceptive Trade Practices Act and negligent misrepresentation.
They seek compensatory damages, prejudgment interest, injunction relief, restitution, attorneys’ fees and costs, as well as other relief deemed appropriate by the court.
Gates and Solis are represented by Abbas Kazerounian and Andrei Armas of Kazerouni Law Group APC and Joshua B. Swigart of Hyde & Swigart.
The Pure Protein, Body Fortress Slack-Fill Class Action Lawsuit is Matthew Gates and Carlos Solis v. NBTY Inc. and United States Nutrition Inc., Case No. 16-cv-02090-AJB-WVG, in the U.S. District Court for the Southern District of California.
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