A group of consumers have filed a proposed class-action lawsuit against Costco Wholesale Corporation, accusing the retailer of selling protein powder “tainted” with toxic heavy metals with no warning to consumers.
The lawsuit, filed on Tuesday in federal court in Washington state, names seven consumers as plaintiffs. They allege that Costco violated consumer protection and false advertising laws by selling and marketing Orgain Organic Protein Powder as “high quality, clean, and nutritious without disclosing the presence or risk of heavy metals, including lead, cadmium, and arsenic”.
“Heavy metals are known to pose significant and adverse health risks and consequences to humans,” the lawsuit states.
It continued: “As a major national retailer with sophisticated supply-chain management and quality control processes, Costco knew or should have known about the heavy metals in the Contaminated Products it sells, including the Contaminated Products. Despite this knowledge, or constructive knowledge, Costco continued to sell the Contaminated Products without any warning or disclosure to consumers regarding the presence or material risk of heavy metals in the Contaminated Products.”
The plaintiffs argue that “reasonable customers” could “not learn of the inclusion of heavy metals in the contaminated products unless Costco included a proper disclosure, because identifying the presence of heavy metals requires expensive and sophisticated laboratory testing.” They further allege: “Costco failed to perform or require any heavy metal testing, or to disclose the presence of heavy metals.”
Costco and Orgain did not immediately respond to requests for comment from the Guardian on Thursday.
In a statement provided to the Seattle Times on Wednesday, an Orgain spokesperson said that “while trace amounts of substances that occur in the environment can be present in plant-based ingredients, our products comply with applicable food safety standards and guidance”.
“We stand behind the safety and quality of our products,” they said.
The plaintiffs cite testing and reporting by “the Clean Label Project and Consumer Reports” in their complaint, which they say found “detectable levels of heavy metals” in protein powder products, including in the Orgain Organic Protein Powder. The complaint states that Consumer Reports tested Orgain Organic Plant-Based Protein Powder Vanilla Bean and found that it “exceeded its ‘level of concern’ for lead”.
An investigation from Consumer Reports last year found that protein powders can contain “troubling levels” of toxic heavy metals. The organization said that after testing 23 protein powders and ready-to-drink shakes from popular brands, they found that heavy metal contamination had become “even more common among protein products” and that more than two-thirds of the products “contained more lead in a single serving” than the organization’s food safety experts “say is safe to have in a day”.
The lawsuit this week also says that one of the plaintiffs and their lawyers conducted independent laboratory testing which they claim “confirmed the presence of heavy metals” in the Orgain protein powder.
“Defendant’s business practices – including the misrepresentations and omissions – were deceptive, misleading, unfair, and/or false because, among other things, the contaminated products contained undisclosed toxic heavy metals,” the complaint states.
The plaintiffs are asking the court to require Costco to “disclose the presence and levels of heavy metals” in the products it sells in its stores and online, and to stop selling “such products without adequate disclosure of heavy metal contamination”.
