Earlier this month, a proposed class action was filed alleging Vitamin Shoppe Inc.’s BodyTech protein supplements are falsely marketed. The lawsuit, filed by customers who purchased BodyTech Whey Tech Pro 24, BodyTech 100% Casein and BodyTech Primal Pro, claims the company makes misleading, speculative claims about lactase while “underdosing” Aminogen enzymes. Specifically, plaintiffs say that Vitamin Shoppe’s claims about the enzyme – that it helps in the absorption and digestion of protein – are misleading because the studies cited to support the statements used much higher doses of Aminogen, and didn’t actually test any BodyTech products.
Well, now Vitamin Shoppe is fighting back, submitting a memo on April 2 denying plaintiffs’ claims and supporting the company’s marketing statements. In it, the company argues that:
“Merely because one study finds one particular dosing amount effective for a specified absorption rate, does not mean that a lesser amount will render that product completely unable to ‘help aid in the absorption and digestion of protein.”
In response to allegations that BodyTech protein supplements mislead customers by failing to disclose the comparatively smaller doses of Aminogen, Vitamin Shoppe added:
“[…] such an obligation would impose extraordinary, in fact, impossible burdens upon manufacturers of dietary supplements, mandating that for every ingredient in the product, the label must reference clinical studies.”
Do they have a point? In the interest of being entirely honest, the company could certainly have included more evidence to support its statements about the role of Aminogen in aiding protein absorption – but unless studies had shown that the absorption rate was directly affected by the amount of enzyme, it’s easy to see how such information becomes irrelevant. The studies in question never identified a specific clinical dose of Aminogen required to speed up absorption, and so, on paper, any amount of the enzyme in BodyTech products could arguably be said to fulfill the labels’ claims.
That said, plaintiffs had other problems with the protein supplements’ marketing materials. Consider the following lines, taken from the label of Whey Tech Pro 24:
“Whey Tech Pro 24 fuels your body with 24 grams of high quality protein per serving! Add Whey Tech to your dietary and exercise regimen, and you’ll be benefitting from an important combination of whey protein isolates, concentrates, and peptides. […] Whey Tech Pro 24 is enhanced with lactase as well as Aminogen, a patented protein enzyme blend. This grouping of enzymes may help aid in the absorption and digestion of protein.”
Here’s the question: does lactase help in the absorption and digestion of protein? Plaintiffs say the above statement gives consumers the impression it does, when the “group of enzymes” is actually a reference to Aminogen alone. Vitamin Shoppe says this interpretation is based on a “tortured reading” of the label – but there’s certainly some room for debate. The company accepts that lactase isn’t involved in protein digestion – but:
“Simply put, a reasonable consumer would read ‘grouping of enzymes’ as referring to ‘Aminogen, a patented protein enzyme blend,’ which is the last part of the preceding sentence.”
It’s an interesting, grammatical defense – and one that plaintiffs argue is part of a wider company policy of “knowingly employing” underdosing in BodyTech products.
The case is being heard in the United States District Court for the Southern District of New York, and is by no means the only lawsuit filed over protein powders and supplements. Several products, including MusclePharm's Arnold Schwarzenegger Series Iron Mass, Nature's Best's Isopure, and MuscleTech's Nitro-Tech and Phase8 powders are being investigated by attorneys for allegedly “spiking” protein with synthetics and other substitutes.