On August 25, 2014, a class action lawsuit was filed in the U.S. District Court for the Eastern District of New York on behalf of consumers that purchased the protein supplement “Body Fortress Super Advanced Whey Protein.  The named Defendants are United States Nutrition, Inc., Healthwatchers, Inc., and parent company, NBTY, Inc.

The Complaint alleges that, Body Fortress Super Advanced Whey Protein does not have as much protein as the label represents.  More specifically, the pleading alleges that Defendants engaged in “protein-spiking,” a process by which manufacturers add less expensive ingredients to boost a protein product’s nitrogen content while reducing manufacturing costs.  The issue is whether consumers were deceived by manufacturers into believing they are receiving more whey protein than is actually contained in the product.

The product labeling claims to have 30 grams of protein per serving, but this number allegedly also includes free form amino acids.  Plaintiffs’ counsel alleges that testing reveals that the actual content per serving of whey protein is 21.5 grams once the “protein-spiking” agents are removed.

The American Herbal Products Association has condemned the act of protein-spiking.  Plaintiffs are seeking class certification and compensatory damages.


Use of Privacy Service Leads to In Rem Jurisdiction in Anticyberquatting Consumer Protection Act Case

August 14, 2014

On August 7, 2014, the U.S. District Court for the Eastern District of Virginia held that a cybersquatting complainant established that it could not obtain personal jurisdiction over a typosquatting registrant by showing that the true registrant was unknown due to the use of a privacy service, the U.S. District Court for August 7 (Central Source […]

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“Revenge Porn” Issue Gains Traction As Bill Passes New York Senate

July 19, 2014

The New York State Senate recently passed legislation (S5946A) that would make it a crime to distribute “revenge porn.” In short, “revenge porn” is a form of cyber bullying .  It is the practice of sharing private nude or sexually explicit photographs or videos of people online without their consent, even if the photograph was […]

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New York Court Rules That Bulletin Board-Style Online Forum Suggests Posts Are Mere Opinions

July 13, 2014

On June 26, 2014 in the matter of Nanoviricides, Inc. v. Seeking Alpha, Inc., the New York Supreme Court for the County of New York held that a negative anonymous online forum post about a company was a statement of pure opinion, not subject to defamation claims. NNVC sought a court order to identify an […]

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NAD Rules Online Reviews Not Sufficient To Substantiate Advertising Claim

July 13, 2014

The National Advertising Division (“NAD”) recently decided that an advertiser’s use of aggregated online consumer reviews was not sufficiently reliable and representative to support a claim that its product “America’s Most Recommended.” More specifically, the NAD reviewed an advertising claim made by Euro-Pro for its Shark-branded vacuum cleaners in various media, including television commercials, infomercials, […]

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