How the David Protein Lawsuit Highlights the Conflict Between Innovation and Regulatory Compliance

A recent lawsuit may have broader implications for how the functional food industry views novel ingredients. Filed on January 23, 2026, on behalf of three consumers, the class action lawsuit against David Protein alleges the actual fat and calorie content of its protein bars is significantly higher than stated on the labels.¹ At the core of this lawsuit are issues stemming from how total fat in a product is measured in a laboratory versus how it is metabolized in the human body. In this case, the ingredient esterified propoxylated glycerol (EPG), used as a fat substitute in the protein bars, is the focus of measurement discrepancies. As novel ingredients become more common in functional foods, gaps are forming between nutrition measurement, regulatory compliance, and consumer perception.

What is EPG?

The fat substitute EPG is similar in molecular structure to conventional fats, but is digested differently, leading to a reduced intake of calories, food scientist Abbey Thiel, PhD, explains. “During digestion, our body has enzymes that act like little scissors and clip the fatty acids,” Thiel states. “This leads to 9 calories/gram of fat. EPG is structurally very similar to triglycerides, however, large propylene glycol units have been inserted. Our enzymes cannot cleave off the fatty acids, since these large propylene glycol units are in the way. This means we cannot really digest the EPG even though it looks like fat. Instead, since not much can be cleaved off, absorbed, and used by our body, it is only 0.7 calories/gram. EPG is nearly 0 calories because we don't really digest it.”

There are multiple methods of measuring calories and fat in an ingredient, and at issue in the lawsuit is the measurement of EPG and how it is presented to the consumer.

Testing Methods

The lawsuit alleges that third-party testing on the protein bars revealed calories to be 78% to 83% higher than labeled and fat to be 68% to 400% excess over the labeled values.² In a published response to the lawsuit, David Protein CEO Peter Rahal argues that these claims are based on a misunderstanding of calorie calculation methods of certain ingredients, most significantly EPG.³

The methods used were the Atwater factors and AOAC 945.44 methods. The Atwater factors, the lawsuit states, assign “4 calories for 1 gram of carb, 9 calories for 1 gram of fat, and 4 calories for 1 gram of protein.” AOAC 945.44 methods were used for fat analysis. In response, Rahal states that the 4-4-9 standard does not apply to ingredients like EPG and that other calorie calculation methods are permitted by the Food and Drug Administration (FDA) in such cases.

Thiel explains that the selection of the method for measuring calories and fat is essential, especially with novel functional ingredients. The ‘bomb calorimetry’ testing method used in the lawsuit measures how much total energy is in a food by burning it completely, Thiel adds. “The important thing to understand is that this reflects total chemical energy, not necessarily how much energy your body can actually use,” she adds. “Because, of course, bodies are not bomb calorimeters but contain a complex digestive tract full of acids and enzymes. This is why nutrition labels don’t rely on bomb calorimetry.”

While EPG is structurally similar to fat and contains chemical energy that shows up in bomb calorimetry, Thiel explains, it behaves differently in the human body, which is something that shows up in measurements based on human digestion.

Additionally, testing methods are not necessarily as modern as the ingredients. “AOAC 945.44 is more ‘old standard’ than ‘gold standard,’” explains Blake Ebersole, Founder of Fearless Naturals USA and NaturPro Scientific LLC. “Food analytical methods must be 'fit for purpose', and some methods don't fit some foods. It's important to remember that food science is like other scientific disciplines – older methods were the best we had at that time.”

Regulatory Perspective

Ultimately, certain standards may not be appropriate for novel ingredients, and there is some flexibility in which calculation method is used. “The 4-4-9 Atwater factors are not a rule, but more of a default rule of thumb for metabolizable energy from macronutrients,” Ebersole adds. “In 21 CFR 101.9 (c) (1) (i), FDA recognizes that some ingredients, like nondigestible carbohydrates and sugar alcohols, are not metabolized like common macronutrients…So, the rule correctly defers to the science on these type of ingredients.”

Rahal notes that the FDA has reviewed Generally Recognized as Safe (GRAS) notices related to EPG, which have recognized the lower calorie contribution of EPG. However, a review of a GRAS notice focuses on the safety of the ingredient and not necessarily the nutrition. “A GRAS 'no comment' letter should not be considered a magic blessing for every downstream labeling decision,” Ebersole states. “While statements in these notices may serve as supportive evidence, the underlying science needs to be reviewed and proven for its case to be ironclad.”

Analytical methods applied to ingredient are crucial, and in this case, may provide a potential pathway for how novel ingredients are incorporated into the industry in the future. “[This challenge] underscores the importance of food analytical methods in business risk,” Ebersole notes.

Comparison to Regulations of Other Food Substitutes

Fat and sugar substitutes are not new to the industry: EPG was invented in the 1980s to replace fat triglycerides fats in food products.⁴ Olestra has been used in the industry as a fat replacer, Thiel notes, and the sugar replacer Allulose is increasing in popularity. Similar to EPG, both are incompletely digested by the human body.

While the food substitute ingredients are similar in some aspects, there are crucial differences in the way they are regulated. As Ashish R. Talati, member, Talati Law Firm PLLC, explains, the main issue in this case is how well the measurement of the ingredient EPG is supported by the regulatory framework. “The regulation allows for ‘specific food factors… approved by the FDA… or by other means, as appropriate’ under § 101.9(c)(1)(i)(D), which raises the question of what level of FDA recognition is required,” Talati states. “That’s where the comparison to another fat substitute, olestra, is instructive. Olestra went through the full food additive petition process and is codified in 21 C.F.R. § 172.867, where FDA explicitly states it ‘shall not be considered as a source of fat or calories’ for labeling purposes. Allulose provides a second example. It was GRAS-notified, but that alone was not enough to establish its labeling treatment. FDA still required citizen petitions and ultimately issued guidance and enforcement discretion before allowing a reduced calorie factor and different treatment on the Nutrition Facts panel.”

Ultimately, though there are multiple options for measuring calories in a novel ingredient, the methods do not guarantee compliance. “The core issue in this case is whether EPG has enough regulatory grounding to support its treatment under the ‘specific food factor’ provision, or whether the company is effectively extending that framework without a clear FDA endorsement,” Talati states. “That ambiguity is exactly what’s driving this lawsuit.”

Consumer Education

As this lawsuit highlights, traditional testing methods for ingredients and the innovation of functional food ingredients can sometimes be seemingly at odds, and consumer trust is on the line. Thiel points to a growing opportunity for consumer education and the communication on nutrition labels, especially when considering novel ingredients such as fat replacers. “The current Nutrition Facts panel was designed around traditional macronutrients, and it doesn’t always do a great job of capturing how newer, functionally designed ingredients behave,” she explains. “There may be room to evolve labeling so that ingredients like fat replacers or non-digestible carbohydrates are more clearly represented, rather than being interpreted through frameworks that weren’t designed for them.”

Nutrition isn’t a single number, she states, and helping consumers understand how novel ingredients function in food, as well as behave in the body, will be key.

“Effectively communicating to consumers is often the hardest part of innovation in food,” Ebersole states. “Not only is consumer science literacy very low, but the bombardment of public misinformation around nutrition has never been more intense. The key is always to make it as simple, short and straightforward as possible.”

References

1. McEvoy E. David Protein Faces Class Action Over Caloric and Fat Labeling Accuracy. Published March 17, 2026. Accessed March 25, 2026. https://www.nutritionaloutlook.com/view/david-protein-faces-class-action-over-caloric-and-fat-labeling-accuracy
2. Lopez v. Linus Technologies, Inc., No. 1:26-cv-00635 (S.D.N.Y. Jan. 23, 2026). Accessed March 25, 2026. https://storage.courtlistener.com/recap/gov.uscourts.nysd.656767/gov.uscourts.nysd.656767.1.0_1.pdf
3. David Protein. Class Action Lawsuit Response. Accessed March 17, 2026. https://davidprotein.com/pages/class-action-lawsuit-response
4. Bechtel DH, Article series: Safety of esterified propoxylated glycerol (EPG), a nonabsorbable fat replacer. Regulatory Toxicology and Pharmacology, 2014;70(2):S91-S94. doi:10.1016/j.yrtph.2014.11.010