Class Action Claims Nutricost Powders Contain More Calories, Undisclosed Artificial Flavor Than Advertised

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A proposed class action contends that certain Nutricost supplement powders are mislabeled in that they contain more calories per serving than advertised and because the products are flavored artificially, not naturally. 

The 24-page lawsuit alleges eSupplements, which does business as Nutricost, has falsely advertised that its supplements, including the EAA powder and Pre-Workout powder, contain zero and five calories per serving, respectively, when they actually contain 56 calories per serving. Also, the case contends that the company deceptively claims that the powders are “Naturally Flavored with Other Natural Flavors” since their sweet taste is derived from the synthetic ingredient DL malic acid.

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The complaint relays that under U.S. Food and Drug Administration (FDA) regulations, dietary supplement manufacturers are not permitted to omit calories on a label if the product’s total calories exceed five per serving. Additionally, the FDA states that manufacturers can use one of five methods to determine the caloric content of a product, which can be as much as 20 percent greater than the calorie content listed on a label, the suit explains.

However, the filing says that an independent nutritional analysis firm tested the powders using an FDA method called “bomb calorimetry” and found that the products contain 56 calories per serving. Further, the case contends that Nutricost’s powders are mislabeled under any of the FDA’s five relevant methods.

As the suit tells it, Nutricost’s claim that its EAA powder is exclusively naturally flavored, which appears on product labels alongside depictions of blue raspberries, is false given that the supplement contains an artificial flavoring agent listed as “malic acid.”

“While there is a naturally occurring form of malic acid, it is extremely expensive to formulate in large quantities and is almost never used in mass-produced food products,” the filing reads. “Instead, the malic acid that Defendant uses in these Products is ‘DL malic acid,’ a synthetic petrochemical.”

According to the complaint, federal and state labeling regulations stipulate that a product’s front and back labels must display the source of its characterizing flavor, but Nutricost’s products have none of the required disclosures regarding the use of artificial flavors.

Nutricost’s alleged misrepresentations deceive consumers who rely on calories-per-serving and flavoring claims, “as they cannot confirm or disprove those claims simply by viewing or even consuming the [p]roduct,” the suit charges.

The lawsuit alleges Nutricost has used false labels to sell its powders at a premium price, capitalizing on consumer health trends as buyers are willing to pay more for natural food products.

The lawsuit looks to represent anyone in California who purchased Nutricost’s EAA powder or Pre-Workout powder within the last four years.

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