SAN FRANCISCO — An appeals court reversed the dismissal of a class-action lawsuit that alleges a protein supplement misled customers about the amount of protein it actually contained.
The U.S. Court of Appeals for the Ninth Circuit reversed the decision of the U.S. District Court for the Northern District of California, which had ruled in favor of MusclePharm, a company accused of making false and misleading statements about the amount of protein contained in one of its products.
The nutrition panel on the product in question says that one serving of the product—95 grams—contains 40 grams of protein. Two specific protein sources are also listed on the label, the court document said.
However, allegedly not all of the protein comes from the listed protein sources, the ruling said.
Plaintiffs alleged that the company was inflating the amount of protein by using non-protein substances.
The appeals court said that the Federal Food, Drug, and Cosmetic Act preempted lawsuits based on what it called "nitrogen-spiking," or "protein-spiking," but it did not preempt cases based on the allegedly misleading implication that the protein from the product came from two specifically named sources. The appeals court ultimately reversed the earlier dismissal and remanded the case back to the lower court.