Ankeny company hit with $5 million lawsuit alleging consumer fraud

By: - October 27, 2021 12:50 pm

A potential class-action lawsuit alleges an Ankeny company has defrauded consumers by overstating the amount of protein contained in their snack bars, fortified powders and other products. (Photo composite from U.S. District Court filings.)

A federal lawsuit alleges an Ankeny company has defrauded consumers by overstating the amount of protein contained in their snack bars, fortified powders and other products.

The 12 plaintiffs are seeking class-action status and more than $5 million in damages, alleging consumer fraud, deceptive business practices and unjust enrichment on the part of Bowmar Nutrition, an Ankeny-based company.

The plaintiffs in the case are individual consumers who live in Texas, New Jersey, Florida, New York and other states. They allege they relied upon the claims made by Bowmar about the content of its protein-fortified products. Those claims are made on product labels and on the company’s website and, the plaintiffs allege, they significantly overstate the amount of protein in each product.

Federal lawsuit made similar claims

A federal lawsuit based on similar allegations of deceptive labeling was filed against Bowmar Nutrition in April by the Consumer Products Association, a California-based nonprofit.

In that lawsuit, the CPA alleged that testing it had commissioned showed various Bowmar nut spreads contained between 4.7 and 8.6 grams of protein per serving rather than the 10 grams as claimed on the label.

For example, CPA claimed Bowmar’s High-Protein Hazelnut Chocolate Spread was advertised as delivering 179 calories and only 1.5 grams of saturated fat. Testing showed the spread contains 199 calories and almost 7 grams of saturated fat, CPA claimed.

The California lawsuit was dismissed two weeks ago when a judge ruled the association had not been harmed by the alleged fraud since it existed largely to investigate such matters.

“CPA spent money investigating and addressing the exact problem they were established to address — false nutritional claims — in the exact way they planned to address such problems: testing and education,” U.S. District Judge Thomas Whelan ruled. “It seems clear CPA lacks standing here. An organization created to advance enforcement of labeling laws is not hampered in its mission because those laws are violated. Absent such violations, the organization would need a new mission.”

According to the plaintiffs, testing performed by reputable national laboratories have established that each of the powdered mixes manufactured by Bowmar have 10% to 67% fewer grams of protein than advertised. Other products are similarly labeled, they say, such as Halloween Egg Nut Spread, which claims to have 10 grams of protein per serving and actually contains around 6.6 grams of protein.

The plaintiffs claim they suffered economic injury by Bowmar’s “fraudulent and deceptive conduct.”

Bowmar has yet to file a response to the lawsuit. The company has not responded to an email from the Iowa Capital Dispatch.

According to the lawsuit, all of Bowmar’s protein powders are fortified with the same key ingredient – whey protein derived from cow’s milk – and all purportedly contain either 22 or 23 grams of protein per serving and are priced at $34.99 per pound. Bowmar’s protein bars sell for $3 each, the lawsuit alleges.

Bowmar sells its products in a variety of flavorings not normally associated with health foods: lemon cookie, protein s’mores, snickerdoodle, chocolate hazelnut, maple bacon doughnut, confetti cake, etc.

“Thousands of consumers, including the plaintiffs in this case, purchased Bowmar’s whey protein-fortified nut spreads, powders, bars, and frostings, relying on the company’s marketing and labelling claims about the protein content in those products,” the lawsuit claims “Defendant reaped millions of dollars in profits from these consumers, who received inadequate products sold under false pretenses.”

In seeking class-action status, the plaintiffs assert there are thousands of potential additional plaintiffs throughout the country. Class-action status would allow all of those claims to be consolidated, rather than pursued individually, in the courts.

Lawyers for the plaintiffs claim millions of Americans use protein supplements derived from whey protein to meet weight loss and fitness goals. The size of the global protein-supplement market was valued at $18.91 billion in 2020.

The case is based on federal regulations pertaining to so-called “Class I” foods, defined as fortified or fabricated food products, which must contain protein and other ingredients in amounts that are at least equal to what is stated on the label. The lawsuit claims Bowmar’s products deviate from claims made on product labels and that these variances “tend to move in one direction” by consistently overstating, rather than understating, the amount of protein they contain.

The plaintiffs cite a 2011 ruling by the California Supreme Court that says, “Simply stated: Labels matter. The marketing industry is based on the premise that labels matter, that consumers will choose one product over another similar product based on its label.”

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.

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