BROOKLYN (CN) - NBTY uses "protein spiking" to misrepresent the amount of whey protein actually contained in its diet supplement, a class action claims in Federal Court.
Lead plaintiff Jason Mencer sued NBTY Inc., United States Nutrition, and Healthwatchers on Monday, claiming they sell Body Fortress Super Advanced Whey Protein that's spiked with nitrogen, to exaggerate the measurement of protein in the stuff.
"The whey protein industry is a growing and extremely competitive business environment," the complaint states, with the market expected to grow by 62 percent by 2018, when it's predicted to hit $7.8 billion.
"However, the price of wholesale whey protein keeps increasing and is usually purchased for roughly $15-$18/kilo, making the profit margins on whey protein powder products very low," according to the complaint.
It adds: "In an effort to reduce protein manufacturing costs, defendants add cheaper free form amino acids and non-protein ingredients to increase the nitrogen content of the product's protein powder. Nitrogen is the 'tag' used by a common protein content test to determine the amount of protein in a product; but this is neither a direct measure of the actual protein content in a product nor a measure of the type of nitrogen containing compounds in a product.
"This act is commonly referred to as 'protein-spiking', 'nitrogen-spiking' or 'amino-spiking', and was evidenced recently in the 2007 pet food incident, which lead to domestic recalls of these products, and the 2008 Chinese milk powder scandal, when melamine, a nitrogen-rich chemical, was added to raw materials to fake high protein contents.
"As a result of defendants' practices, the consumer is left with a product that contains approximately 30% less whey protein than defendants represented."
A supine Congress has allowed diet supplements to be loosely regulated in the United States.
Plaintiffs, who are from six states, seek class certification and damages for unlawful trade practices, state consumer law violations, and unjust enrichment.
Their lead counsel is Jonathan Shub with Seeger Weiss, of New York City.