Photo of Eric Alexander

While some of us are naturally jacked up—have you seen Bexis in short sleeves?—others turn to supplements to build up their beach bodies.  We are not talking about the injectables favored by 1970s East German Olympians or 1980s NFL draft flops.  And certainly not the supplements advertised on late night television as more targeted enhancers.  (McConnell says that he heard they work as well as a Tarantino remake of a Kurosawa re-envisioning of a Shakespeare tragedy, whatever that means.)  No, we are talking about protein powder, which people who lift weights often shake up with water or milk to chug after a workout.  If you have ever cleaned the “shaker bottle” used by a high school athlete after his/her workouts, then you would know that the real problem with these powders is how much remains as a putrid clump in the bottle.  If you have not had that pleasure, then you probably know that they sell protein powder in tubs ranging from large to ridiculously large at a variety of retailers.  If you have glanced at the options among the protein powders on the retail shelves, then you may have noticed that they tout the number of grams of protein per serving and maybe something about the source of the protein.  If you are the plaintiff in Gubala v. CVS Pharmacy, Inc., No. 14 C 9039, 2015 U.S. Dist. LEXIS 77509 (N.D. Ill. June 16, 2015), and you paid $20 for a container of this stuff, then you bring a purported class action for purchasers of the same product in ten different states.  You also lose.

Plaintiff claims that the language on the front—a cylinder or truncated ovoid container does not really have a front, but we will let that slide—of the product he bought from his drug store was misleading because it said “Whey Protein Powder” and “26 grams of high-quality protein,” when each serving actually contains 21.8 grams of whey protein and 4.2 grams of other proteins plaintiff did not consider as high quality as the stuff left over from making cheese.  Id. at **5-6.  Based on this, plaintiff alleged violations of the ten consumer fraud acts, unjust enrichment and express warranty.  The defendant moved to dismiss on several grounds, including on preemption based on the FDCA and National Labeling and Education Act, which is why we saw the case. As we have said before, the NLEA has an express preemption provision for any state requirements for food labeling—protein powder is food—that are not identical to its own.  And the NLEA does have requirements on how protein content is to be discussed in labeling—by giving the “total protein contained in each serving size or other unit of measure.”  Id. at *9.  The regulations even say how total protein can be calculated, which appears to reject the plaintiff’s idea that the non-whey protein in the product he bought should not really count.  Plaintiff wanted the product’s labeling to “differentiate between whey protein and protein from amino acids” and that “would not be identical to the labeling requirements imposed by federal law.”  Id. at *11.  That is pretty straightforward express preemption, but there was a cherry and whipped cream on top of this frothy vanilla shake.  First, in adopting the protein labeling regulations, the FDA had considered and rejected the comment that labeling should specify how much of the protein in a food product was “high quality.”  Id. at **11-12.  Second, the same court had already rejected similar arguments in the context of labeling for fiber content and been affirmed by the Seventh Circuit.  Among the previously rejected arguments was that preemption of food labeling claims under the NLEA can apply to complaints only about the content of the Nutrition Facts portion of the food product’s labeling.  Id. at **14-16.  So, plaintiff could not base his consumer fraud claims on the disclosure of the amount of whey protein in the product.

Fighting off its lactic acid build up, the court proceeded to address the non-preemption grounds for dismissal.  Because the NLEA does provide for the possibility that the names of food products can be misleading by focusing on only one of its ingredients, there was a possibility of claim under the Illinois consumer fraud statute if the product’s name was misleading in the context of the entire labeling.  Plaintiff contended that the name “Whey Protein Powder” was misleading because the product was not all whey protein.  His problem, aside from being so litigious that he sued over allegedly overpaying for a $20 container of protein powder that had only 83% of its protein derived from his preferred source, was that the product’s name on the label was followed by “Vanilla” and “Naturally & Artificially Flavored Drink Mix.”  It also lacked any descriptor like “only whey” or “100% whey” or “absolutely, exclusively whey” or “way, way whey.”  Thus, it was “clear to any consumer upon first glance that the Product is not pure whey protein, and thus the label does not create a likelihood of deception or have the capacity to deceive based on the identifying name of ‘whey protein powder.’”  Id. at *19.  This meant the product name was not misleading as a matter of law and the non-preempted consumer fraud claim was dismissed.  The express warranty claim was pressed aside because “26 grams of high-quality protein per serving” was considered “puffing” and not a potentially actionable express warranty.  Id. at *22.  The unjust enrichment claim fared no better because it was premised on dismissed consumer fraud claims.  Id. at *23.

The one down-side to the decision is that the dismissal of all of these claims was without prejudice.  While we know that plaintiffs tend to get at least to their third set (i.e., the second amended complaint) before a dismissal under 12(b)(6) will be with prejudice, we doubt that any amount of stretching of the facts or law here will allow plaintiff to re-frame his allegations in a way to avoid preemption and state claims under state law.  Maybe he can get those noted trainers Hans and Franz to pump—clap—him up before he tries.