MusclePharm Protein Class Action Lawsuit Revived By 9th Circ.

The Ninth Circuit recently revived a MusclePharm class action lawsuit, finding that FDA regulations do not preempt plaintiff claims that the company misrepresented the protein source in their supplements.

Plaintiff Tucker Durnford filed his class action against MusclePharm Corp. in 2015 alleging that the company misleads consumers about the protein content of their Arnold Schwarzenegger Series Iron Mass supplement.

According to Durnford, the Iron Mass supplement contains under half of the 40 grams of “hydrolyzed beef protein and lactoferrin protein.”

The MusclePharm class action claims that the protein content in the supplement was inflated by “nitrogen spiking,” a practice of adding nitrogen compounds to inflate protein content.

MusclePharm argued that Durnford’s claims were preempted by U.S. Food and Drug Administration (FDA) regulations on protein content and measurement in supplements under the Food, Drug, and Cosmetic Act. These regulations allow nitrogen to be included in protein content.

In 2016, U.S. District Judge Haywood S. Gilliam Jr. agreed with MusclePharm’s arguments and dismissed Durnford’s claims based on preemption by FDA regulations.

“It does not, however, preempt a misbranding theory premised on the label’s allegedly false or misleading implication that the supplement’s protein came entirely from two specifically named, genuine protein sources,” said U.S. Circuit Court Judge Marsha Berzon as a part of the Ninth Circuit panel.

The Ninth Circuit panel found that Judge Gilliam was partially correct in his assessment that FDA regulations preempt Durnford’s claims about protein.

Although the regulations preempt the claims about protein content, FDA regulations are only concerned with the amount and therefore do not preempt claims regarding the source of protein in supplements.

The panel therefore revived Durnford’s claims that the supplements do not contain all of the beef protein and lactoferrin protein listed on the label.

“Durnford argues that, whatever the true protein amount in grams per serving, the label falsely or misleadingly suggested that that protein is entirely composed of two kinds of actual, genuine protein,” Judge Berzon said. “In other words, according to Durnford, the label falsely disclaims nitrogen spiking.”

The panel found that Durnford’s misbranding theory was not preempted and revived three California statutory claims as well as a claim for breach of express warranty.

“Durnford’s complaint adequately alleges facts necessary to support a consumer claim premised on his protein composition theory of misbranding,” the panel concluded.

MusclePharm faced similar claims in a class action lawsuit filed in May 2016 by Hi-Tech Pharmaceuticals Inc., a competing supplement company. Hi-Tech argued that MusclePharm intentionally defrauded them out of sales and profits by deceiving customers into believing that the Arnold Schwarzenegger Series Iron Mass supplement had the same protein content as a similar Hi-Tech protein supplement.

Durnford is represented by Matt J. Malone of Rock Law and Susan Brown and Michael F. Ram of Robins Kaplan LLP.

The MusclePharm Class Action Lawsuit is Durnford v. MusclePharm Corp., Case No. 3:15-cv-00413-HSG, in the U.S. Court of Appeals for the Ninth Circuit.