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Porter v. NBTY, Inc.

United States District Court, N.D. Illinois, Eastern Division

November 28, 2016

Ryan Porter and Haarin Kwon, Plaintiffs,
NBTY, Inc., United States Nutrition, Inc., Healthwatchers DE, Inc., and Met-Rx Nutrition, Inc., Defendants.


          Manish S. Shah United States District Judge

         Plaintiffs bought defendants' whey protein supplements, because the product labels said that they contained 60 grams of protein per serving. It turns out that the products did not contain 60 grams of whey protein, as plaintiffs believed, but 60 grams of a combination of whey protein, free-form amino acids, and other non-protein ingredients. Plaintiffs seek to represent a nationwide class and bring claims under consumer fraud statutes of Illinois, New York, and eight other states, as well as claims for breach of express warranty and unjust enrichment. Defendants move to dismiss plaintiffs' claims.

         I. Legal Standards

         A court must dismiss an action if it determines, at any time, it lacks subject-matter jurisdiction, Fed.R.Civ.P. 12(h)(3), and a defendant may move to dismiss an action for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of proving that jurisdiction is proper. Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1022 (7th Cir. 2001) (citation omitted). One component of subject-matter jurisdiction is Article III standing-the requirement that plaintiffs present an actual case or controvery. See Silha v. ACT, Inc., 807 F.3d 169, 172-73 (7th Cir. 2015). “[A] plaintiff need only show the existence of facts that could, consistent with the complaint's allegations, establish standing.” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (citations omitted).

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain factual allegations that plausibly suggest a right to relief. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 558 (2009)). “The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits.” Triad Assocs., Inc. v. Chicago Hous. Authority, 892 F.2d 583, 586 (7th Cir. 1989). With a 12(b)(6) motion, a court may only consider allegations in the complaint, documents attached to the complaint, and documents that are both referred to in the complaint and central to its claims. Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). A court must construe all factual allegations as true and draw all reasonable inferences in the plaintiff's favor, but a court need not accept legal conclusions or conclusory allegations. Virnich, 664 F.3d at 212 (citing Ashcroft v. Iqbal, 556 U.S. 662, 680-82 (2009)).

         II. Facts

         Defendant NBTY, Inc., along with its subsidiaries, defendants United States Nutrition, Inc., Healthwatchers (DE), Inc., and Met-Rx Nutrition, Inc., manufactured and sold the protein supplements Body Fortress Super Advanced Whey Protein, Body Fortress Super Advanced Whey Isolate, and Met-Rx MyoSynthesis Whey. [30] ¶¶ 1, 9-13, 16.[1] Plaintiff Ryan Porter bought Body Fortress Super Advanced Whey Protein from at least two different retail stores in Illinois. [30] ¶ 7. Plaintiff Haarin Kwon, a New York citizen, ordered the same product from [30] ¶ 8.

         According to the nutrition information on the back label, under the heading “Supplement Facts, ” Body Fortress Super Advanced Whey Protein contained 30 grams of protein and 60% of the “Daily Value” (also known as the Daily Reference Value) for protein, per scoop. [30] ¶¶ 33, 44. A serving of 2 scoops contained 60 grams and 120% of the Daily Value for protein. [30] ¶ 44. The label on the front of the product contained the statement, “60g Premium Protein.” [30] ¶ 50. On other parts of the label, the following additional statements appeared:

1) Premium Whey Protein;
2) Body Fortress Super Advanced Whey Protein delivers a powerful blend of premium proteins athletes need to support lean muscle mass and maximize their training;
3) Body Fortress Super Advanced Whey Protein features a Super Recovery Blend to further enhance the benefits of our premium Whey Protein Blend;
4) Whey is the preferred protein source in sports and bodybuilding nutrition because it contains superior quality Branched Chain Amino Acids-made up of Leucine, Isoleucine and Valine-which are important for the maintenance of muscle tissue; and
5) Contains naturally occurring Branched Chain Amino Acids from protein.

[30] ¶ 59. And the label also contained graphs explaining the benefits of ingesting whey protein. [30] ¶ 60. The label of Body Fortress Super Advanced Whey Isolate (a product that plaintiffs did not purchase), contained a similar assortment of statements and graphs, and both Whey Isolate and Met-Rx MyoSynthesis Whey listed nutrition information on the back label, including their protein content expressed both in grams and as a percentage of Daily Value. [30] ¶¶ 45-46, 52, 63- 64. Plaintiffs believe that all of these statements (with the exception of the grams of protein per serving size stated on the back label), along with the products' names themselves, were false and misleading and did not comply with federal regulations, because they overstated the amount of whey protein in the products. [30] ¶¶ 65-67. Plaintiffs allege that defendants engaged in a practice known as “protein-spiking, ” “nitrogen-spiking, ” or “amino-spiking” in the manufacture of its whey protein products. [30] ¶ 17. This practice exploited the fact that the protein content of foods is sometimes measured indirectly-by testing for the nitrogen content and multiplying that measurement by a factor of 6.25-and resulted in an inflated measurement on a product's label. [30] ¶ 36. Whey protein is a complete protein source, rich in branched-chain amino acids which are metabolized directly within the muscles. [30] ¶ 14. But defendants included in their whey protein products cheaper, less beneficial free-form amino acids, which are not absorbed as effectively, and not considered to be protein. [30] ¶¶ 17, 31. Plaintiffs allege that defendants also included in their products other non-protein ingredients. [30] ¶ 17. Because these free-form amino acids and additional ingredients contain nitrogen, and the defendants measured protein content by identifying nitrogen-containing compounds, the free-form amino acids and non-protein incredients contributed to the product's reported total protein content. [30] ¶¶ 17-18.

         According to plaintiffs, because the products' labeling highlighted the protein content, defendants should have used an alternative method to calculate those amounts. [30] ¶¶ 24, 37. That alternative method, the Protein Digestibility-Corrected Amino Acid Score, measures the protein quality of the food and requires the manufacturer to determine the amount of essential amino acids contained within the product. [30] ¶¶ 24, 26-28. The digestibility-corrected score provides a more precise measurement of the protein content of the product, excluding free-form amino acids and other non-protein ingredients. [30] ¶ 47. Because defendants used the ...

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