The makers of Herbal Zen Nutrition Plant-based Protein products are facing a consumer class action lawsuit alleging the powders’ packaging contains too much non-functional slack fill.

Plaintiff Miao Xin Hu is asserting claims against Iovate Health Sciences USA for common law fraud, among other violations of state and federal consumer protection laws. On May 10, 2017, Hu purchased a 1.5 lbs container of Herbal Zen Nutrition protein powder product at a GNC store in New York for $19.97. But Hu claims, she did not receive the quantity of product that she paid for and was promised.

“As a result of Defendant’s deceptive conduct as alleged herein, Plaintiff Hu was injured when she paid full price for the Product but did not receive a full container. She would not have paid this sum had she known that the container was only a little more than half full,” the Herbal Zen Nutrition lawsuit states.

According to the Herbal Zen Nutrition class action lawsuit, slack fill is air or filler material within a packaged product. Non-functional slack fill is slack fill that serves no legitimate purpose, and misleads consumers about the quantity of the food they are purchasing.

The Herbal Zen Nutrition Product package is a plastic container that is approximately 7 inches in height with a 0.25 inch sealed portion at the top, and 6.75 inches of vertical capacity. However, the protein powder only fills the bottom four inches of the container, leaving 2.75 vertical inches of air – essentially 41 percent non-functional slack fill!

“When consumers purchase a package of Defendant’s Product, they are getting less protein powder then they bargained for. They are effectively tricked into paying for air, because the Product containers contain large amounts of non-functional slack fill.”

In fact, the 30-page complaint notes that Iovate’s own Purely Inspired Plant-based powder is the exact same size as its Herbal Zen Nutrition product container – yet the Purely Inspired container contains much more protein powder. This, Hu asserts, demonstrates that it is possible to fit a greater quantity of protein powder into Iovate’s Herbal Zen Nutrition containers. Hu says this proves that at least some of the empty space in the Herbal Zen containers is “unnecessary and thus misleading” to consumers.

Still, many consumers have come to expect significant slack fill in protein powder products, but this does not excuse Iovate’s alleged deception. The FDA has stated that “although consumers may become used to the presence of non-functional slack fill in a particular product or product line, the recurrence of slack fill over an extended period of time does not legitimize such slack fill if it is non-functional.”

Hu brings this proposed nationwide consumer class action lawsuit on behalf of herself and all other retail consumers who purchased Herbal Zen Nutrition Plant-based Protein Powder during the “applicable limitations period”. Hu is also seeking to certify a New York subclass.

Along with restitution and compensatory damages, the lawsuit is asking the court to require Iovate to immediately cease from continuing to misrepresent and conceal material information and engage in a corrective advertising campaign.

Hu and the proposed classes are represented by C.K. Lee and Anne Seelig of Lee Litigation Group, PLLC.

The Herbal Zen Nutrition Class Action Lawsuit is Hu, et al. v. Iovate Health Sciences USA, Inc., Case No. 1:17-cv-09427, in the U.S. District Court for the Southern District of New York.


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