On Wednesday, January 28th, 2015, a class action complaint was filed against MusclePharm for alleged deceptive label claims in the Arnold Schwarzenegger Series Iron Mass weight gainer product.
Update – Feb 4, 2015 – We now have Exhibit A, which shows the plaintiff’s lab tests. They are discussed below.
This lawsuit was filed in the State of California, and was done so by a different set of law firms than the previous class action suits filed above.
You can see the publicly filed documents below, which now include the lab tests in question:
And the lab test from Exhibit A:
What the complaint filed says
The complaint begins very much like the others, defining what “protein spiking” / “nitrogen spiking” / “amino spiking” is, referencing GNC, raw materials costs, etc.
Then the juicy stuff:
- The complaint alleges that the defendant (MusclePharm) makes a specific false claim regarding the source of protein in the Product (Arnold Schwarzenegger Series Iron Mass) by stating, “MUSCLE PLASMA PROTEIN TECHNOLOGY: 40g of a potent blend of hydrolyzed beef protein and lactoferrin protein“, citing the picture below:
They also allege that the defendant further misleads consumers with its Muscle Plasma Protein Mix” under the Supplement Facts panel, which discloses 40 grams of protein per serving, citing the image shown below:
They then claim that the the total protein count of 40 grams per serving is not just hydrolyzed beef protein and lactoferrin protein, but also includes “the non-amino acid, non-protein compound creatine monohydrate and the free-form amino acids, l-glycine, leucine, iso-leucine and valine.”
- Then the big blow:
The lawsuit alleges that there are 19.4 grams of bounded protein.
They reference Exhibit A
, which we unfortunately do not have.
Exhibit A Lab Results
- A 95g serving size (2 scoops worth) was sampled, which is the serving size on the label.
19.4039g of bound amino acids were found. (This is what would come from the actual beef protein and perhaps the lactoferrin. It may also count the nitrate-bounded BCAAs, but we need to confirm that.)
Recall that the label above states 40G OF A POTENT BLEND OF HYDROLYZED BEEF PROTEIN AND LACTOFERRIN PROTEIN and if this lab test is 100% valid, that label claim is simply false — by over 2x.
- 266mg free-form leucine was found.
This is actually unexpected, since the leucine is supposed to be bonded to nitrate per the label (it is listed as “BCAA nitrates”), so we would think that we’d only find more “bound” leucine. We will see if we can confirm this.
- There was no free-form valine found. This is listed as BRL, which stands for “Below Reporting Limit”.
This is to be expected, since it is part of the “BCAA Nitrates”, and we’d expect it to be “bound”, not free form.
- There was no free form isoleucine found within reporting limits.
Again, this could be expected due to the nitrate bond. We will have to confirm how nitrate bonds affect these tests.
- 6.110g free-form glycine was found. This is on the label.
- The lab was performed by ChromaDex, the most reputable name in the testing business.
- We don’t have the full story here.
There is no data on creatine, nor is there data on total nitrogen content. This is important, and is discussed below.
- The complaint also brings Twitter into the fold, citing this Twitter screenshot shown below:
At the time of posting, the Tweet is still live. You can see it below:
- This was filed by different lawyers than previous suits. The plaintiff, Tucker Durnford, is represented by Ram, Olson, Cereghino & Kopczynski LLP in California, as well as Terrell Marshall Daudt & Willie PLLC in Washington State.
As always, we need to remind you that these are nothing but allegations.
We are missing the following CRUCIAL pieces of information:
Exhibit A, which would show the exact data, what lab it was tested at, and at what date
- A chain of custody has NEVER been shown in ANY of the alleged complaints.
We have never once seen proof that the products were not potentially tampered with from the point of manufacturing to the testing lab.
Until there is due process, nobody is guilty.
MusclePharm has “responded” by posting all protein tests at the MPSSI
Update: April 17, 2015: MusclePharm is now posting their “3rd party” protein tests to the MPSSI (MusclePharm Sports Science Institute), and these tests include Iron Whey and Iron Mass – one test from each batch.
You can read the post discussed above. Anyone can now go to the site, enter the batch/lot numbers, and see how the protein performed from their exact batch.
Some discussion, now that we have Exhibit A
This section added in the Feb 4, 2015 update
This very well could be a “legal” product
Looking at the incomplete data provided to us in Exhibit A, if this is a valid lab test with a perfect chain of custody, MusclePharm might not have done anything technically “illegal” per the FDA guidelines.
After all, glycine is on the label, and per current guidelines, it does get counted as a protein. Meanwhile, according to Kjeldahl testing, the creatine and the BCAA nitrates would show up as “extra protein”.
So on a purely technical technical technical basis, you might actually have “40g” of “nitrogen based stuff” in here, which sadly qualifies as protein if reading the FDA’s guidelines to the letter of the law. This is all discussed in our original amino acid spiking article.
But is this grounds for suit?
The question is, Is this misleading and deceptive?
That is what the lawsuit is accusing. One major point is that the label states,
40G OF A POTENT BLEND OF HYDROLYZED BEEF PROTEIN AND LACTOFERRIN PROTEIN*
This could be the main factor that pushes this suit forward.
Meanwhile, in our other article, we’ve shown that creatine, with its three nitrogen atoms, can really throw off Kjeldahl tests. In addition, adding Nitrate to the BCAAs further complicates matters due to nitrogen being a primary component of Nitrate (formula NO3).
Since we haven’t heard a single update on the other class action complaints, we really don’t know if the courts / judges believe this is misleading / deceptive enough to go to trial or award settlement.
We’ll keep this and our other pages updated as we know more.
/end Feb 4 update
First formal complaint, not the first accusation
This is the first formal accusation of misleading / deceptive claims against MusclePharm, who have been “accused” on Twitter and in various discussion forums quite a bit.
In fact, the accusations were so loud and persistent to the point that MusclePharm released some lab tests for Arnold Schwarzenegger Series Iron Whey lab tests, although we speculated that there were more questions than answers.
The fact that MusclePharm is now posting certificate of authenticities – with detailed amino information – to the MPSSI, as discussed above, may truly help alleviate consumer fears for any batches of protein that are listed on their site.
What is Arnold’s Role?
When researching Arnold Schwarzenegger’s actual involvement with MusclePharm, we found the following pieces of information:
- When Arnold signed on with MusclePharm, they awarded him the following:
- Royalty payments based upon a percentage of net sales of his licensed products (subject to certain minimum amounts)
- 780,000 shares of MusclePharm’s restricted common stock. Arnold could not sell more than 50% of it for at least six months.
- The agreement is initially three years, beginning on July 26, 2013. So the Arnold Schwarzenegger Series lives until at least July 25, 2016, barring either party terminates the agreement.[1,2]
- The agreement may be terminated by either party with a 30-day notice. There would likely be stiff penalties for the side choosing to terminate.
This means that if Arnold never sold or gained any MSLP stock (and that’s a big “if”), at the time of publishing this article, he would own $8.02 * 780,000 = $6,255,600 worth of MusclePharm.
Since MuslcePharm has 13.11 million shares outstanding, that would amount to him owning 5.95% of the company – one of the most major shareholders. Again, that’s a big if – he could easily have bought or sold more shares.
At the time of the original agreement, however, that number was higher – he originally had an 8.8% stake in the company, which was worth $7.2 million at the time.
Due to the fact that Arnold is not listed on Yahoo’s “Key Holders” page, he may no longer have such a stake, as the major shareholder with the least number of shares owns 222,678 shares at time of writing.
This is to provide some perspective as to Arnold’s potential stake in the corporation.
We’ll keep this post up to date and try to get our hands on Exhibit A for you, as it is publicly available information.
Update, May 2016: Hi-Tech Pharmaceuticals has jumped in on the act, and are now suing both Brad Pyatt and MusclePharm over unfair competition.
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- Form 8-K – MusclePharm Corporation – July 26, 2013; SEC.gov; 2013
- Morrell, A; Sports Supplement Company Backed By Arnold Schwarzenegger Facing SEC Investigation; Forbes Magazine; October 17, 2013
- MSLP Summary; Yahoo Finance; 2015
- MSLP Major Holders; Yahoo Finance; 2015