Nutricost EAA, Pre-Workout Powders Calories and Flavoring Class Action

This class action brings suit against eSupplements, LLC, which does business as Nutricost, for two of its products: its EAA powder and its Pre-Workout powder. The complaint alleges that the products are deceptively labeled because (1) they do not accurately report the number of calories each serving contains, and (2) they claim to be naturally flavored when they actually contain at least one artificial flavor.

The class for this action is all persons in California who bought the products between November 10, 2018 and November 10, 2022.

The Food and Drug Administration (FDA) is largely responsible for regulating the labeling of foods and supplements like the powders. FDA regulations require that a product must declare a “Total Calories” amount when calories “are present in a dietary supplement in quantitative amounts by weight that exceed the amount that can be declared as zero”—that is, when the supplement contains more than five calories per serving.

Pages 5 and 6 of the complaint reproduce the Supplement Facts panel for the two products. The panel for the EAA powder shows five calories per serving; the panel for the Pre-Workout powder does not show any calorie information.

To calculate the number of calories contained in a food, the FDA permits companies to use any of five methods. Also, the complaint says, “A ‘safe-harbor’ provision allows the ‘total number of calories’ measured by any of the Five Methods to be as much as 20% greater than the calorie content listed on a label.”

One of the five permitted methods is the use of “bomb calorimetry. The complaint alleges that the products were tested by an independent nutritional-analysis company. Its findings were as follows:

EAA powder: 5.12 kcal per gram, or approximately 1,690 calories per container and 56 calories per serving.

Pre-Workout powder: 3.74 kcal per gram, or approximately 3,366 calories per container and 56 calories per serving.

The complaint alleges that the labeling of both powders is deceptive and that the products would still be mislabeled if tested under any of the other methods.

As to the second issue, page 8 of the complaint shows the front of the EAA powder container bearing the words, “Naturally Flavored with Other Natural Flavors.” However, on the following page, the complaint reproduces the Other Ingredients panel, which shows malic acid.

According to the complaint, while there is a natural form of malic acid, “it is extremely expensive to formulate in large quantities and is almost never used in mass-produced food products.” Instead, the complaint alleges that the substance used in the products is DL malic acid, which “is manufactured in petrochemical plants from benzene or butane … through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts.”

The complaint alleges that the labeling misleads consumers by conflating natural and synthetic malic acid and using the generic term “malic acid” instead of the specific name, “DL malic acid.”

Article Type: Lawsuit
Topic: Consumer
Tags: All Natural Claims, Calorie Content, Deceptive Advertising, Deceptive Labels