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ADventures in Law

Making Gains on Protein Claims

Craig Carpenter Moderates Panel at 22nd Annual Symposium on Emerging Issues in Intellectual Property

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Protein is having a moment – it’s in <a href="https://about.starbucks.com/stories/2025/starbucks-new-protein-lattes-and-cold-foam-drinks-now-available/" target="_blank" rel="noreferrer noopener">lattes</a>, on <a href="https://www.cnbc.com/2025/12/18/chipotle-high-protein-snack-meat-cup.html" target="_blank" rel="noreferrer noopener">fast‑casual menus</a> and likely being pitched for toothpaste somewhere in a marketing brainstorm. But before brands start flexing those “high protein” callouts, you’ll want to make sure your claims take the proper form.

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Here’s the deal: Calling a product “high protein” isn’t as simple as tossing in some whey and hoping for the best. Under Food and Drug Administration (FDA) regulations (<a href="https://www.ecfr.gov/current/title-21/chapter-I/subchapter-B/part-101/subpart-D/section-101.54" target="_blank" rel="noreferrer noopener">21 C.F.R. § 101.54</a>), terms like “high,” “rich in” or “excellent source of” can only be used if protein accounts for 20 percent or more of the Daily Reference Value (DRV) per reference amount customarily consumed. Claims like “good source” or “provides” apply when a product contains 10 to 19 percent of DRV.

For protein, that DRV is 50 grams for adults and children age 4+. See<a href="https://www.ecfr.gov/current/title-21/chapter-I/subchapter-B/part-101/subpart-A/section-101.9" target="_blank" rel="noreferrer noopener">21 C.F.R. § 101.9(c)(9)</a>.

But here’s where the reps really count: The FDA doesn’t let you use raw grams of protein. Rather, under <a href="https://www.ecfr.gov/current/title-21/chapter-I/subchapter-B/part-101/subpart-A/section-101.9" target="_blank" rel="noreferrer noopener">21 C.F.R. § 101.9(c)(7)</a>, protein must be measured using the PDCAAS – the Protein Digestibility‑Corrected Amino Acid Score. In other words, it’s not the sheer weight of protein that matters; it’s how much protein your body can actually use.

Therefore, a product must contain at least 20 percent of DRV in PDCAAS-corrected protein to be labeled “high” in protein, and 10 to 19 percent of DRV in PDCAAS-corrected protein to qualify as a “good source” of protein.

Protein may be packed into everything these days, but litigation risk is just as ready to flex. Bare Bones, manufacturer of a popular bone broth, is now feeling the strain as a plaintiff alleges the company misled consumers about the amount of protein in its product. In the August 2025 <a href="https://www.classaction.org/media/ross-v-barebones-ventures-llc-complaint_1.pdf" target="_blank" rel="noreferrer noopener">complaint</a>, the plaintiff argues that the rep count was off with regard to the company’s protein claims. According to the complaint, Bare Bones featured a claim of “20G protein per serving” on the front of the box.  But the plaintiff explains in their complaint that the FDA has established that the standard serving size for soup is 8 ounces, whereas Bare Bones has labeled its product as a single-serving container with a net weight of 16 ounces, double the standard serving size. Breaking out our calculators again, we see this would mean that the FDA standard soup-size version of Bare Bones would only have 10 grams of protein, not the full 20 advertised. This case is still ongoing, so we are acting like spotters and actively watching how the weights fall.

Because in both advertising and the gym, form matters – and someone is watching.

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