What is protein spiking?

‘Protein spiking’ – also known as ‘nitrogen spiking’ – is a method that allows unscrupulous companies to put in less protein than listed on the product label and avoid being caught.

The motivation is clear: since protein is an expensive ingredient, unethical companies reduce the amount of protein in a product to save money and to make bigger profits.

Protein spiking is an emerging issue in Europe but it has already prompted several class action lawsuits in the USA.

ESSNA has defined ‘protein spiking’ as: the addition of free form amino acids and other nitrogen rich/containing nutrients added for the primary purpose of increasing the calculated protein content of a food.

Spiking, on this definition, has two important negative consequences:

  • Protein spiking severely misleads consumers who, as a result, are prevented from making informed choices when purchasing sport nutrition and other mainstream food products that promote a high protein content.
  • Protein spiking distorts fair competition, rewarding companies who intentionally and deceitfully inflate the protein content of their products allowing them to achieve higher profit margins and sales.

How is this possible?

The problem lies with the definition of protein in the EU food labelling Regulation (i.e. Regulation (EU) No 1169/2011 on the provision of food information to consumers). This Regulation defines protein as: ‘protein’ means the protein content calculated using the formula: protein = total Kjeldahl nitrogen x 6,25.

This calculation does not state from which sources of nitrogen the calculation can be made, in particular whether protein can be calculated from nitrogen content of ingredients containing non-protein nitrogen such as creatine, taurine, nitrates, flavour enhancer glycine, and free amino acids. In addition, the current nitrogen conversion factor of 6.25 overestimates the amount of protein for most protein sources, and underestimates that of dairy.

So why is nitrogen being used for the calculation? Is there another definition?

Nitrogen is used because protein is made up of amino acids that are attached together in a chain. All amino acid contain nitrogen, so measuring nitrogen content of a product can indicate the amount of protein it contains. But this technique also assumes that the product contains just complete proteins. Many food products, however, also contain other nitrogen rich ingredients that are either added to spike the product or for other more legitimate purposes.

At this moment in time there is no scientific consensus for an alternative and easy to use definition.

An expert Working Group has been created within ESSNA, with leading sports nutrition specialists and protein manufacturers brought together to discuss the issue and possible solutions.

Is protein spiking therefore legal?

No. Protein spiking goes against key General Food Law Principles, in particular Article 7(1) of the FIC Regulation covering fair information, Article 169 of the Treaty on the Functioning of the European Union, Article 8(1)(C) of Regulation (EC) 178/2002 laying down the general principles and requirements of food law, and Article 3 and 5(1) of the Regulation (EC) No 1924/2006 on nutrition and health claims made on foods.

Is the problem limited to the sport nutrition industry?

No, spiking is an issue for the entire health food industry. This is particularly because the use of protein and their associated health and nutrition claims is promoted more and more on a large number of mainstream products, such as breakfast cereals, drinks and snacks. This is accompanied by a growth in consumer demand for high protein products.

Why is this affecting the sports nutrition industry more specifically?

The issue is particularly problematic for the sports industry because a number of nitrogen containing ingredients are used in sports nutrition products to improve the nutritional quality and effectiveness of the products (e.g. creatine or carnitine). Companies are therefore at risk of inadvertently misleading consumers as to the protein content of their product.

What is ESSNA doing?

First of all, it is essential to stress that ESSNA strongly condemns all deliberate acts of protein spiking within our own internal Code of Practice.

  • Protein labelling roadmap and guidance

In addition, ESSNA has taken steps to help guide its members away from inadvertent spiking. ESSNA has developed a roadmap advising members on how to label the protein content in their products, in particular when some ingredients containing non-protein nitrogen are present in the products (which is often legitimately the case for sports nutrition products).

Our guidance includes an additional voluntary declaration – in close proximity but not within the nutrition information table – regarding the ingredients that have been used to calculate protein.

This was necessary because, unless the definition of protein in the FIC is changed, food business operators are meant to include all nitrogen containing ingredients into the calculation and therefore declaration of protein. Our guidance document can be found HERE.

This guidance has been discussed with the European Commission and the Member States Competent Authorities, and comments and feedback received has been taken into account.

  • Guidance on quality control for manufacturing facilities

ESSNA is also currently working on a voluntary quality control guidance to be used in manufacturing facilities. Such guidance will define what critical controls should be put in place and/or what the authorities should be looking for when inspecting facilities to discover spiking activities.

  • Lobbying for changes to the legislation

Finally, ESSNA is also in dialogue with key policy makers at EU level working on possible amendments to the legislation. The European Commission have informed ESSNA that there are no plans to amend the current definition at this moment in time.

ESSNA’s internal expert Working Group has however identified the following solutions:

Clarifying and/or amending the definition of protein in Annex 1 of Regulation (EU) No 1169/2011 on the provision of food information to consumers (FIC)

There are various different ways in which the definition of protein could be amended/clarified. Certain countries outside of the EU already use different and more specific definition, for example in the South African Regulation relating to the labelling and advertising of foodstuffs (R146/2010).

ESSNA understands, however, that an amendment to the protein definition within the FIC will have a significant impact on the whole of the food industry. Furthermore, there is no scientific consensus as to how protein should be defined.

Given the scope and potential impact of such an amendment, and following extensive debate, we would suggest a simple addition to the existing definition, which clarifies that the protein labelling should not be misleading to consumers.

  • ESSNA believes a specific clarification is needed, namely that quantity of protein in a product should include only proteins that meet the following definition: “A chain of amino acids connected by peptide bonds”. This definition relates to protein sources to be added to the product prior to processing.
  • As further clarification, it should be stated that non-protein nitrogen- (NPN) ingredients should not be counted towards total protein content on product labels. NPN ingredients should be accounted for and subtracted from the total nitrogen content when protein is measured by nitrogen content. The addition to food products of NPN ingredients simply to boost the protein declaration on the product is misleading.

Altering the Conditions of Use (CoU) for protein health and nutrition claims

ESSNA would also recommend appropriate amendments to the conditions of use of the relevant nutrition and health claims on protein.

While this solution would have the merit of applying only to those food business operators actively promoting protein on their products, it is worth noting that a number of companies may be making health claims on sub-minimal levels of true protein required to make the claims, when their protein content is declared including the nitrogen supplied by non-protein-nitrogen and free amino acids, rather than protein. This is contradictory to the NHCR where there are no health claims approved for free amino acids, for example, essential amino acids.

Is ESSNA going to act against protein spiking through its non-compliance campaign?

As deliberate protein spiking is strongly condemned by ESSNA, we will indeed act on cases of spiking. This is essential not only to protect consumers, but also to ensure a level playing field for companies distributing products rich in proteins.

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