United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah, United States District Judge.
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.
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).
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.  ¶¶ 7-8; 
¶¶ 1, 10. The front label stated “60g Premium
Protein.”  ¶ 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. 
¶ 44. Plaintiffs claim defendants engaged in
“protein-spiking, ” a practice that inflates a
product's protein count.  ¶ 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. .
filed a motion to dismiss, , and I dismissed some of
plaintiffs' claims. ; 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.-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.  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
“amino-spiking”) occurs when manufacturers
exploit the nitrogen method by increasing the amount of
nitrogen in a product to inflate the protein count.  at
4;  ¶ 17.
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. § 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). 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.  at 13.
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. . 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).
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.  ¶ 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. .
Preemption and Safe Harbor Provisions
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.
v. MusclePharm Corp., 907 F.3d 595 (9th Cir. 2018), is
distinguishable from this case.. 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 ...