Nitrogen spiking: The loophole jeopardising protein’s podium place

By Annie Harrison-Dunn contact

- Last updated on GMT

'The way protein is currently defined in labelling regulation needs to change because this is precisely the root of the protein spiking problem,' says ESSNA vice-chair. ©iStock/ogichobanov
'The way protein is currently defined in labelling regulation needs to change because this is precisely the root of the protein spiking problem,' says ESSNA vice-chair. ©iStock/ogichobanov

Related tags: European union

The European sports nutrition industry is calling for a ‘protein spiking’ loophole to be closed, but if there is any Brussels movement it is likely to be slow and this lapse threatens to knock the nutrition staple from the top step of the sports nutrition podium.

Members of the European Specialist Sports Nutrition Alliance (ESSNA) have finally agreed to write into its code of practice voluntary labelling guidance on the controversial practice of falsifying product protein content via nitrogen manipulation.

Yet before this can happen ESSNA must check with the European Commission that any additional labelling would be legal, and as with all things pan-EU this could take time.

Simultaneously ESSNA has called for more concrete changes to legal definitions of protein, but so far the Commission has been reluctant. 

So where does that leave the €2bn+ sports nutrition industry (according to Euromonitor International and excluding mainstream sport, energy drinks and bars)?

Is it heading for a protein own-goal?

What is protein spiking?

It’s a practice born out of a legal loophole that states manufacturers must calculate the amount of protein in foods and supplements using a factor of nitrogen, but does not specify what the source of that nitrogen should be. 

Annex I of the EU’s Food Information to Consumers (FIC) regulation says ‘protein’ means the protein content calculated using the formula: protein = total Kjeldahl nitrogen × 6.25”.  

Secret scale 

The deceptive practice has been well-documented in the US. The issue came to a head in 2014 when a Michigan law firm brought a number of cases against the likes of international retailer and manufacturer NBTY (owner of UK-based retailer Holland & Barrett), alleging misleading label claims of protein products.

In South Africa similar cases emerged last year when a study​ found close to 10% of the 70 protein shakes tested had less than 60% of the amount of protein consumers were paying for.

Some of these brands, a full list of which can be found here​, are sold in the EU too.

Yet in Europe the magnitude of the issue is harder to pin down.

In the past industry insiders have told us it has been on the rise for years in some areas of Europe.

Meanwhile another suggested EU industry coyness on the topic may not be a sign so much of the hidden prevalence of the practice, but of a reluctance to shut the door completely on future supply contracts with brands open to spiking.

Suzane Leser, vice-chair of ESSNA and head of nutrition for UK dairy protein firm Volac, has been vocal on the issue, but conceed the scale of the problem in Europe was difficult to determine.

“We have no information if this type of protein spiking is getting worse in the European market, but regardless, ESSNA has come a long way in the past three years with the non-compliance campaign and has built good relationships with a number of enforcement authorities, so that we are now in a better place to work together to ensure that this does not become a big issue in the European market,” ​she told us. 

Voluntary progress

ESSNA’s voluntary guidance is a step in the right direction yet Leser acknowledges this is just one tool to tackle the practice.

“We know that accurate labelling is only part of the protein spiking issue. Protein adulteration during product manufacturing is harder to identify and needs specific and official enforcement controls.

“For this, ESSNA’s second objective is to work closely with enforcement authorities to identify specific critical control points at production sites.”

Ultimately though she said legal changes were needed to close the labelling loophole.

amino acid protein petides research iStock Shunyu Fan
Not all protein molecular structures are created equal. But does the law reflect this accurately enough? ©iStock/ShunyuFan

Call for legal change

“The way protein is currently defined in labelling regulation needs to change because this is precisely the root of the protein spiking problem. The definition leaves it open for protein to be estimated from any source of nitrogen,” ​she said. 

“The danger is that this legal gap allows for products to, knowingly or not, declare a higher protein content in the nutrition information table than is actually in the product, putting brands at risk of being accused of unfair commercial practices and of misleading the consumer, if they are not careful.”

ESSNA has told the Commission total protein labelling should be redefined to include only those sources that meet the definition of a chain of amino acids connected by peptide bonds.

Yet a spokesperson for the Commission told us that while it was aware of the questions raised by the the food information to consumers (FIC) regulation definition, this measurement reflects the international standard as established by the UN’s Codex Alimentarius.

Leser has been among those calling for changes on this Codex definition​ too and an update of this measurement method is said to be due, with the UN’s Food and Agriculture Organisation (FAO) backing the changes in a 2013 report​.

Whether this comes off and whether the Commission follows suit remains to be seen, but in the meantime the official Commission stance is that it “does not plan to change the [FIC protein] definition but is ready to look into the relevant aspects”.

The danger of inaction

New ingredients come in and out of the sports nutrition industry. Beetroot juice may be the hottest new way to improve muscle recovery. Tumeric may hold potential for inflammation. Ketones may preserve bodily glycogen stores. But protein has reigned atop the sports nutrition industry for a long time. Call it the staple blue jeans of the sports nutrition wardrobe.

body building gym protein muscle strength
Rough road to buff: Wouldn't want to be the one to tell this fellow his 8 kg bucket of whey protein isolate has been spiked. ©iStock

Part of that status is efficacy.

Consumers trust protein to do what is says on the tub, and this is backed by EU-approved health claims on muscle mass and bones health - for protein if not for whey​ ​itself.

But what if it didn’t do what it says on the tub? What if the tub didn’t even contain all that much protein to begin with?

If protein spiking is as big a problem in the EU as it has been in the US and elsewhere, or if no legal action is taken to stop such a situation on the European market emerging, then the sector could be setting itself up to take a big hit. 

The game is on - time to step up.

#SNC16​   

SNC16-logo

A new NutraIngredients and European Specialist Sports Nutrition Alliance (ESSNA) congress held in Frankfurt on November 28 the day before Health Ingredients Europe ​will place your business front and centre of the playing field be it in supplements, herbals, powders, mixes, drinks, bars or gels.

More information here​.

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