Kyla Asbury Aug. 29, 2014, 9:38am

CENTRAL ISLIP, N.Y. (Legal Newsline) - Six men from Colorado, Florida, Pennsylvania, Oregon, Kentucky and South Carolina have filed a class action lawsuit against NBTY for deceptive advertising of its protein powder.

The plaintiffs claim NBTY Inc, United States Nutrition Inc. and Healthwatchers Inc. violated the Florida Deceptive and Unfair Trade Practices Act, the Oregon Unlawful Trade Practices Act, the Kentucky Consumer Protection Act, the Colorado Consumer Protection Act and were unjustly enriched at the cost of the plaintiffs.

Jason Mencer, of Polk County, Fla.; Vincent Dougherty, of Clearfield County, Penn.; Tim Harrold, of Oregon; Ross Hepburn of Kentucky; Josh Frasier, of South Carolina; and Cody Walden, of Colorado purchased Body Fortress Super Advanced Whey Protein at various stores in their home states over the last several years, according to a complaint filed Aug. 25 in the U.S. District Court for the Eastern District of New York.

"Defendants feature the name of the ingredient sought by millions of American consumers, 'whey protein,' by predominantly featuring it in the name of the product, 'Body Fortress Super Advanced Whey Protein' on the containers," the complaint states.

The defendants' product is labeled as providing 30 grams of protein per serving. However, the defendants' claimed total protein count of 30 grams per serving is not just whey protein, but also includes several free-form amino acids, a non-protein amino acid and a non-amino acid compound, for the purpose of "protein spiking," according to the suit.

The plaintiffs claim once these "protein spiking" agents are removed from the formula of analysis, and the "bound" amino acid count is determined, the true content of whey protein in the product can be determined.

"After scientific testing of the product....the actual total content per serving of whey protein is actually around 21.5 opposed to 30 grams of protein claims defendants for their 'whey protein' products," the complaint states.

The defendants mislead consumers by repeatedly referencing whey protein, but never disclaiming the limited amount of whey protein that the product actually delivers or making clear that the product's protein content is only fractionally whey protein, according to the suit.

The plaintiffs claim they would have purchased another whey protein product or would have only paid for the whey protein actually delivered with the product of they would have not been deceived by the misleading labeling of the product by the defendants.

The plaintiffs claim since a common protein content test relies on nitrogen as a measure of protein, this alleged act deceives customers into believing they are receiving more whey protein than is actually contained in the product.

On April 1, the American Herbal Products Association condemned the act of protein-spiking, according to the suit.

"Despite the knowledge that 'protein-spiking' is misleading to consumers, defendants continue to advertise, distribute, label, manufacture and market the product in a misleading and deceptive manner," the complaint states.

The plaintiffs are seeking class certification and compensatory damages. They are represented by Jonathan Shub of Seeger Weiss LLP; Nick Suciu III of Barbat, Mansour & Suciu PLLC; and Jordan L. Chaikin of Parker Waichman LLP.

The case has been assigned to District Judge Leonard D. Wexler.

U.S. District Court for the Eastern District of New York case number: 2:14-cv-05030

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