Dan Churney Jun. 23, 2015, 4:17pm

A federal judge has terminated a lawsuit against CVS Pharmacy, alleging the retailer led consumers astray with its labeling of a private-label protein drink mix it sold nationwide.

Derek Gubala filed a four-count class action lawsuit against CVS Pharmacy late last year in U.S. District Court for the Northern District of Illinois, saying the labeling on boxes of CVS Whey Protein Powder misled him. Gubala said use of the phrases “Whey Protein Powder” and “26 grams of high-quality protein” on the front label made him mistakenly believe the 26 grams were pure whey protein.

In actuality, Gubala claimed CVS spikes the whey with “nitrogen-containing, cheap, and less beneficial free-form amino acids and non-protein ingredients.” The spiking increases the protein content, but at a lower cost to CVS. However, the result to the consumer is to allegedly “pay an inflated price for the product, which delivers less actual protein than they reasonably expect.” According to Gubala’s analysis, after the spiking agents are removed, the protein powder contains 21.8 grams of whey protein, rather than the 26 grams he alleged the label claims.

Gubala said he bought a box of the drink mix in July 2014 at a CVS store in suburban Bolingbrook.

CVS is incorporated in Delaware and has its main office in Rhode Island, with stores throughout the U.S. Gubala’s suit accused CVS of violating consumer fraud laws in Illinois and nine other states, unjust enrichment and breach of express warranty.

On Jan. 15, CVS moved to have the suit dismissed and on June 16, U.S. District Judge Thomas M. Durkin agreed.

Durkin noted Gubala’s fraud claims center on labeling, and for CVS to remedy the alleged fraud, CVS would have to identify each source of protein. However, the National Labeling and Education Act does not require food merchants to distinguish between sources of protein when listing protein content.

Moreover, the Food and Drug Administration considered and rejected such a proposal in 1993, deciding it is fine for a product to be described as high in protein or as a good source of protein – regardless of the source of protein – as long as the protein content was calculated according to FDA regulations. Gubala has not alleged CVS failed to calculate according to these regulations.

Gubala also contended the front labeling was deceptive, because it highlights whey as an ingredient, but not the free-form amino acids and other non-protein ingredients. Durkin termed this claim a mischaracterization, as the front label does note – albeit in smaller text – the product also contains vanilla, and uses the words, “Naturally & Artificially Flavored Drink Mix,” which indicates other ingredients.

The judge next deflated Gubala’s argument CVS expressed a warranty – specifically, that it promised to deliver 26 grams of high protein per serving – but failed to live up to it. According to Durkin, this is an example of a merchant boasting about their product, not making a factual assertion – a practice legally known as “puffing.”

In the event Durkin did not dismiss the suit, CVS had asked Durkin to put the suit on hold, while the FDA looks into changing its rule on labeling; with the dismissal, this became moot. The FDA began considering a change in March 2014 and has been inviting comment on the proposal. Durkin said, if Gubala amended his complaint to address its shortcomings, Durkin would consider the request to defer to the FDA. The judge gave Gubala until July 16 to file an amended complaint.

Gubala is represented by Siprut P.C., of Chicago, and the Detroit firm of Barbat, Mansour & Suciu, as well as by Miller Law Firm, of Rochester, Mich. CVS is defended by Milwaukee-based Michael Best & Friedrich.

Gubala and another man, John Norris, also have a federal class action suit pending against Allmax Nutrition and HBS International, alleging the companies misrepresented the nature and quality of a dietary supplement. This suit was filed eight days after the suit was lodged against CVS. Gubala sued Simply Nourish Pet Food Company in March 2014 in federal court, alleging false advertising. The company filed a motion to dismiss Gubala’s class action suit, which was granted four months later.

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