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Porter v. NBTY, Inc.

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

November 4, 2019

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.

         Ryan Porter and Haarin Kwon bought a protein supplement product that they allege had a misleading label. They bring state-law consumer-fraud claims against the manufacturer and its subsidiaries. I denied defendants' motion to dismiss the consumer-fraud claims, and defendants now move for summary judgment, primarily based on new case law and in part based on facts learned during discovery.

         I. Legal Standard

         Defendants NBTY, Inc., along with its subsidiaries, defendants United States Nutrition, Inc., Healthwatchers (DE), Inc., and Met-RX Nutrition, Inc., must show there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine dispute over a material fact exists when, based on the evidence, a reasonable jury could return a verdict for plaintiffs Porter and Kwon. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). I construe the facts and draw all reasonable inferences in the light most favorable to plaintiffs. Laborers' Pension Fund v. W.R. Weis Co., Inc., 879 F.3d 760, 766 (7th Cir. 2018). Defendants bear the burden of establishing the absence of any genuine issue of material fact, while Porter and Kwon must present evidence to establish every element of their claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         II. Background

         Between 2013 and 2016, Porter and Kwon purchased defendants' protein supplement Body Fortress Super Advanced Whey Protein because they believed the product contained 60 grams of whey protein in two scoops. [30] ¶¶ 7-8; [176] ¶¶ 1, 10.[1] The front label stated “60g Premium Protein.” [30] ¶ 50. The nutrition panel on the back stated the product contained 30 grams of protein and 60% of the “Daily Value” for protein, per scoop. [30] ¶ 44. Plaintiffs claim defendants engaged in “protein-spiking, ” a practice that inflates a product's protein count. [30] ¶ 17. Because defendants allegedly overstated the protein amount and source on the product label, Porter and Kwon claim the product label is false and misleading in violation of multiple state consumer-fraud laws. [30].

         Defendants filed a motion to dismiss, [37], and I dismissed some of plaintiffs' claims. [49]; Porter v. NBTY, Inc., No. 15 CV 11459, 2016 WL 6948379, at *8 (N.D. Ill. Nov. 28, 2016). However, in relevant part, I held that plaintiffs' state-law claims were not preempted by the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 343 et seq. (FDCA), as amended by the National Labeling and Education Act, 21 U.S.C. §§ 341 et seq.[2]-with the exception of the total grams of protein per serving size stated on the nutrition panel because FDA regulations permit defendants' use of the “nitrogen method” to calculate that figure.[3] [49] at 4; 21 C.F.R. § 101.9(c)(7) (2019). This method measures protein content indirectly, by testing for the nitrogen content and multiplying that measurement by a factor of 6.25. § 101.9(c)(7). “Protein-spiking” (also called “nitrogen-spiking” or “amino-spiking”) occurs when manufacturers exploit the nitrogen method by increasing the amount of nitrogen in a product to inflate the protein count. [49] at 4; [30] ¶ 17.

         When information on a nutrition panel, like the total grams of protein, appears elsewhere on the product, it becomes a nutrient-content claim subject to further requirements.[4] § 101.13(c). For protein-content claims, the regulations require a “statement of the corrected amount of protein per serving” expressed as a percentage of daily value on the nutrition panel. § 101.9(c)(7)(i). This figure must be calculated using “the actual amount of protein (gram) per serving multiplied by the amino acid score corrected for protein digestibility.” § 101.9(c)(7)(ii).[5] Because defendants made a protein-content claim outside the nutrition panel and were therefore required to calculate the actual amount of protein per serving, I held that plaintiffs alleged enough facts to suggest that the front label describing the amount of protein in the product was false or misleading under the FDCA and its implementing regulations. [49] at 13.

         I also found that the food-labeling requirements cover statements about the total protein in a product but do not impose any requirements when labeling proteins by type. Id. at 13-14. Therefore, any protein-content claim NBTY made about a specific type of protein, like whey, may also be false or misleading under § 101.13(i)(3). Id. Finally, I concluded that the name “Body Fortress Super Advanced Whey Protein” may also violate § 101.18(b) because the plaintiffs adequately alleged that the product name misleads consumers by suggesting the product is comprised exclusively of pure whey protein, as opposed to a mix of ingredients, like nitrogen. Id. at 14-15. Because plaintiffs' state-law claims were based on conduct that violates federal law, I concluded their claims were not preempted. [49]. In other words, the state consumer-fraud laws imposed requirements “identical to” the FDCA and its implementing regulations-namely, to not use false or misleading food labels-and did not directly or indirectly impose additional or different requirements concerning the composition or labeling of food. § 100.1(c)(4).

         After the ruling, the parties engaged in discovery, which gave defendants an opportunity to question Porter and Kwon about their decision to purchase Body Fortress Super Advanced Whey Protein. [176] ¶ 10. In 2018, the Ninth and Eleventh Circuits issued decisions that address federal preemption in the context of food labeling claims. Defendants then filed this motion for summary judgment, asking me to revisit my earlier preemption ruling, dismiss plaintiffs' allegations for failure to state a claim-both as a matter of law and fact-and resolve certain matters related to plaintiffs' proposed class action. [157].

         III. Analysis

         A. Preemption and Safe Harbor Provisions

         “The law of the case is a discretionary doctrine, not an inflexible dictate.” Chicago Joe's Tea Room, LLC v. Vill. of Broadview, 894 F.3d 807, 818 (7th Cir. 2018) (collecting cases). While not controlling law, new appellate decisions from other circuits may be persuasive or instructive and merit revisiting an earlier ruling. See Tice v. Am. Airlines, Inc., 373 F.3d 851, 854 (7th Cir. 2004).

         Durnford v. MusclePharm Corp., 907 F.3d 595 (9th Cir. 2018), is distinguishable from this case.[6]. According to the court, “[Tucker] Durnford was misled by the 40-gram figure on the Supplement's nutrition panel.” Id. at 599. Footnote one distinguishes between the product's packaging as a whole, the “label, ” and the “nutrition panel, ” and notes “the latter is subject to a unique set of stringent federal regulations.” Id. at 598, n.1. The 40-grams figure was calculated using the permissible nitrogen method, so the court affirmed the district court's ruling that Durnford's state-law ...

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