In the latest installment on the “amino acid protein spiking” fiasco, it has been made public that a class action lawsuit has been filed against ALLMAX Nutrition, with respect to their HexaPro protein powder.
The file was made public a couple of weeks ago on November 19, 2014, and is now available for download below:
Main lawsuit bullet points
- The front of the label claims that the product contains 25g protein.
- This complaint makes the following interesting argument:On the ingredients list label, Defendants list several free form amino acids as sub- ingredients of its “AminoPlex,” including L-Glycine, L-Taurine, L-Leucine, L-Valine, and L- Isoleucine.
These same free form amino acids were included in the calculation of the Product’s protein content. Yet, Defendants list these free form amino acids as sub-ingredients of “AminoPlex” and not as sub-ingredients of its “6-Protein Blend” or Whey Protein Isolate, thereby admitting that these free form amino acids are in fact not protein.
- The law firm’s lab data shows that a total of 17.914g bound protein, presumably from the 6-protein blend.
- 4.900g free-form glycine, 1.649g taurine and 0.499g free-form tryptophan was found by the law firm’s lab test. Tryptophan is not on the label.
- Free form Leucine, Isoleucine, and Valine were not found, but are on the label (in the AminoPlex).
- The total amount of amino acids, including the added free-form amino acids, is 24.962g, according to our calculations. This is technically “in spec” with the 25g protein on the label.
- The complaint was filed in several states, including Illinois, South Carolina, California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington. There are different arguments provided for each subclass.
- Derek Gubala and John Norris are the plaintiffs, and are represented by Joseph Siprut of Siprut PC; Nick Suciu of Barbat, Mansour & Suciu PLLC; and E. Powell Miller of The Miller Law Firm.
Disclaimer and discussion
First, let us once again remind you that nothing is proven — these are simply allegations. And for the several-th time, we are yet to see a chain of custody proving that these tubs have not been tampered between the manufacturer and the lab.
With that said, while we don’t usually like to comment on these matters, this will be an interesting case. It’s centered upon on the misleading intent of the plaintiff (ALLMAX). However, the “protein” number is technically in spec with the FDA’s loose definition of the word protein.
This is a very important case because it may determine just how far amino acid spiking can go from a legal point of view. It may be the hardest case to win.
We’re also slightly pleased that ALLMAX’s IsoFLEX was not chosen as the product to base this complaint upon. IsoFlex does have some free form amino acids on the label, but is still a good enough product that we put it on our Top Protein Powder buyer’s guide.
However, we are concerned with the fact that BCAAs are on HexaPro’s product, but were allegedly not found by the law firm’s lab testing. We’ll need to decide what to do with IsoFlex on our aforementioned protein powder guide.
You can stay up to date with all of the other cases on our amino acid spiking article.
Update: May 4, 2016
Yeah, yeah, we know what you’re thinking, this is long since overdue and not really “new” news, but we’re catching up on all these lawsuits and this one deserved an update. And don’t worry, we’ll be digging deep into the Hi-Tech v. ALLMAX lawsuit very soon!
Now, for the latest updates to the HexaPro amino spiking case…
As it turns out, the plaintiffs actually filed a Second Amended Complaint (SAC). The reason for the SAC according to the court documents states:
The Court previously dismissed Plaintiffs’ First Amended Complaint (FAC) because the Court found that the FDCA and NLEA preempted the claims and further, the claims failed as matter of law. Additionally the Court dismissed the FAC with respect to the parent company of HBS for lack of personal jurisdiction, and with respect to all claims related to the product “AllWhey” for lack of standing. Plaintiffs refiled their complaint to remedy the preemption issue and focused solely on HBS and HexaPro.
The updated complaint also rehashes the initial allegations brought by the plaintiffs, which include:
- HexaPro labels lists BCAAs on the HexaPro Label, yet none were found during testing
- Plaintiffs propose that the PDAAS test is required to determine protein content of HexaPro and not the nitrogen content test used by HBS (parent company of ALLMAX), per 21 C.F.R. § 101.9(c)(7)(i)
- Plaintiffs allege HBS added other amino acids (glycine, taurine, etc.) that do not improve the total biological content of the protein in HexaPro
Unfortunately, the court dismissed the parts related to the addition of taurine and glycine on the grounds that:
”Plaintiffs have failed to allege any facts beyond bare conclusions of law that L-Glycine and L-Taurine do not improve the biological quality of the total protein in HexaPro and their claim that the product violates § 172.320 is dismissed without prejudice for failure to state a claim.8”
The gist of all the legalese is that the plaintiffs lost a few “small battles” in the case, but overall they have the upper hand in the “war” against the amino spiking as the majority of counts brought against ALLMAX (HBS) will go to trial.
What you can takeaway from this latest round of court proceedings is that the courts are essentially saying companies CANNOT spike their products or state inflated protein count. Chalk this up to a small victory for the little guys, but we’re still FAR from a conclusion to this ongoing legal saga.
MAKE SURE TO STAY TUNED IN FOR ANY MORE UPDATES AS WE’LL BE STAYING ON TOP OF THE COURT CASES GOING FORWARD!!!