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From Health Law Daily, June 18, 2015

Court says ‘No whey’ to protein powder false labeling claim

By Mary Damitio, J.D.

A consumer fraud claim based on an allegedly deceptive whey protein powder product label was preempted by federal law, a district court ruled in dismissing the complaint without prejudice. Despite the fact that the product was labeled as “Whey Protein Powder,” a fraud claim could not be maintained because federal law requires only that the total amount of protein be accurately listed on the label and does not require different sources of protein to be identified (Gubala v. CVS Pharmacy, Inc., June 16, 2015, Durkin, T.).

Background. Derek Gubala purchased CVS Pharmacy, Inc.’s protein powder product from an Illinois store location. The powder product was labeled as “Whey Protein Powder,” and stated that it contained “26 grams of high-quality protein per serving” and that it “supports lean muscle & exercise recovery,” and is “quick dissolving, easy to mix.”

The protein contained in the product was not purely whey protein, and Gubala claimed that CVS was “protein-spiking” to increase the product’s protein content by adding nitrogen-containing amino acids and non-protein ingredients that were cheap and less beneficial. Gubala argued that he was deceived by the label and would not have purchased the product had he known that the protein contained in the product was not pure whey protein.

Complaint. Gubala brought a class action lawsuit against CVS alleging that it violated various state consumer fraud statutes, including the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.). Gubala also brought claims based upon unjust enrichment and breach of express warranty.

FDC Act preemption. Gubala’s consumer fraud claims were preempted by the federal Food, Drug, and Cosmetic Act (FDC Act) because the law sets forth the regulatory scheme for food labeling and the regulation of nutrient content claims (21 U.S.C. § 343(q),(r)). States are only permitted to impose labeling requirements that are identical to those in the FDC Act and are not more burdensome than federal requirements.

Labeling requirements. Section 343(q)(1)(D) of the FDC Act requires that food products must state the total amount of protein in each serving size. Additionally, the federal regulations (21 C.F.R. Sec. 101.9(c)(7)), set forth the specific calculations to be made in order to determine a product’s protein content. Therefore, protein content labeling is clearly governed by the FDC Act and regulations, which do not require CVS to identify each source of protein when listing a product’s total protein content. Additionally, the FDA already considered whether product labels must distinguish between protein sources and found it to be unnecessary provided that the protein content was accurately calculated. Gubala was given leave to amend his complaint to allege a claim that was not preempted by the FDC Act.

Non-preempted claim. Gubala also claimed that the product label was misleading because it named the product “Whey Protein Powder,” suggesting that the product was composed of one ingredient, a practice that has been viewed by the FDA as potentially misleading (21 C.F.R. Sec. 101.18(b)). However, the label also included the words, “Naturally and Artificially Flavored Drink Mix,” and therefore the statements made it clear that the product was not made entirely of whey protein; the court found that the statements were not deceptive as a matter of law.

Breach of express warranty. Gubala’s state claims based on breach of express warranty were also found to be deficient because statements that products are of “high quality” are seen by the courts as mere puffery rather than promises that create warranties.

The case number is No. 14 C 9039.

Attorneys: Sharon S. Almonrode (The Miller Law Firm, PC) for Derek Gubala.

Companies: CVS Pharmacy, Inc.; CVS Health Corp.

MainStory: TopStory LabelingNews MisbrandingNews PreemptionNews FoodNews FDCActNews SupplementNews IllinoisNews

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