Ancient Nutrition Lawsuits: Bone Broth Protein, Brain Boost, and Prop 65

Ancient Nutrition, the supplement maker co-founded by Jordan Rubin and Josh Axe, has been the target of several lawsuits and a regulatory settlement since 2018. The Ancient Nutrition lawsuits involve a proposed class action over protein labeling on its bone broth powder (dismissed in 2023 on federal preemption grounds), a New York class action over cognitive claims for its Brain Boost supplement, a false advertising suit by competitor Vital Proteins, and a $425,000 California Proposition 65 settlement over lead and cadmium in its products.

Bone Broth Protein Class Action

In April 2021, Diedre Bush and Raquel Diaz filed a proposed class action in the Northern District of New York over Ancient Nutrition’s bone broth protein powder, which advertises 20 grams of protein per serving.¹ The plaintiffs argued the “20g Protein” claim was misleading because the main protein source, collagen, scores a zero on the Protein Digestibility Amino Acid Corrected Score (PDCAAS), a measure of how much protein the body can actually use. They said federal regulations required the company to calculate the corrected protein amount using PDCAAS and to list a percentage daily value on the label, and that Ancient Nutrition did neither.²

The complaint proposed a nationwide class with subclasses in California, Florida, Illinois, Massachusetts, Minnesota, Missouri, New Jersey, New York, and Washington, with more than $5 million in controversy.²

How the Court Ruled

The case, recaptioned Dunn v. Ancient Brands, LLC, ended in September 2023 when Judge Lawrence E. Kahn granted judgment on the pleadings for Ancient Brands.³ Federal food labeling law preempted the state-law claims. The court found the challenge to the front-of-label “20g Protein” statement was expressly preempted because requiring a PDCAAS-adjusted figure on the front label would go beyond what federal law demands.⁴ The back-of-label percentage daily value claim was impliedly preempted because it was “inextricably intertwined” with FDA regulations and amounted to a private attempt to enforce federal labeling requirements.⁵

The dismissal was not final. The court gave the plaintiffs leave to replead if they could frame a state consumer protection claim that did not rest on federal labeling rules.⁵

Brain Boost Cognitive Claims Lawsuit

In March 2023, plaintiff Marietta Viera filed a class action in the Eastern District of New York over Ancient Nutrition’s “Multi-Collagen Protein, Brain Boost.” The complaint alleged the company marketed the supplement as scientifically proven to improve cognitive function, mental clarity, and concentration, using phrases like “clinically studied,” “supported by proven research,” “backed by peer-reviewed studies,” and “tested for efficacy, safety and transparency.”⁶

Viera alleged the product had never been clinically tested and that its key ingredients (Ginkgo Biloba, Bacopa Brahmi, Lion’s Mane, and Ashwagandha) lacked scientific evidence of cognitive benefit at the concentrations used. The complaint also said the label did not disclose the concentrations or daily values of those ingredients, and that the company specifically targeted elderly consumers.⁷ The plaintiff described the product as an “unremarkable vanilla flavored protein powder” and argued that “if none of the individual ingredients in Brain Boost can improve a consumer’s mental acuity, then consuming them in a single product will have no effect either.”⁶

The suit brought claims under New York General Business Law Sections 349 and 350 on behalf of New York purchasers. Viera sought class certification, compensatory and treble damages, attorneys’ fees, and a jury trial.⁷

Vital Proteins Competitor Suit

Rival collagen brand Vital Proteins sued Ancient Nutrition in 2022 in the Northern District of Illinois, alleging false advertising and unfair competition on two fronts. First, it challenged claims that Ancient Nutrition’s collagen supplements could deliver results such as reduced joint discomfort in as little as one or three days. Second, it attacked the labeling on Ancient Nutrition’s “Vegetarian Collagen Peptides,” which prominently displayed “10g” even though the product contained a mix of collagen and acacia gum rather than 10 grams of collagen.⁸

Judge John J. Tharp Jr. denied Ancient Nutrition’s motion to dismiss in January 2023. The court held Vital Proteins had standing because consumers might choose Ancient Nutrition’s products based on the challenged efficacy claims, and that a reasonable consumer could read “10g” as a promise of 10 grams of collagen.⁸

Proposition 65 Heavy Metals Settlement

Two California enforcement actions over heavy metals in Ancient Nutrition products were consolidated in Santa Clara County Superior Court. Safe Products for Californians filed the first in November 2018; the Environmental Research Center filed the second in May 2019. The plaintiffs alleged that numerous products across the company’s bone broth, keto, multi-collagen, and herbal lines contained lead and cadmium at levels requiring a Proposition 65 consumer warning.⁹

The case ended in a stipulated consent judgment effective May 27, 2020. Ancient Nutrition denied the material allegations but agreed to a total settlement of $425,000. That included a $166,000 civil penalty, with 75 percent ($124,500) going to California’s Office of Environmental Health Hazard Assessment and 25 percent ($41,500) to the plaintiffs.

Under the judgment, Ancient Nutrition is permanently enjoined from selling products in California that exceed specified daily exposure levels (0.5 micrograms of lead or 4.1 micrograms of cadmium) without a Proposition 65 warning on the label and on internet checkout pages. The company must also arrange annual lead and cadmium testing of covered products by an independent laboratory for at least five consecutive years. The judgment allows for naturally occurring lead in certain ingredients, such as calcium and cocoa powder, subject to strict documentation.⁹

Co-Founder Jordan Rubin’s Earlier FTC Case

The Viera complaint against Ancient Nutrition cited Jordan Rubin’s regulatory history as part of its pattern allegations.⁷ Before co-founding Ancient Nutrition, Rubin ran Garden of Life, a supplement company the Federal Trade Commission charged in March 2006 with making unsubstantiated claims that its products could treat or cure conditions ranging from colds to cancer, and with falsely claiming clinical proof.¹⁰

The FTC alleged Primal Defense was marketed as treating asthma, irritable bowel syndrome, and Crohn’s disease; RM-10 as treating cancer and cardiovascular disease; Living Multi for obesity and diabetes; and FYI for rheumatoid arthritis and fibromyalgia.¹⁰ Rubin and the company settled without admitting or denying the allegations, paying $225,000 in consumer redress and accepting a permanent ban on health claims not backed by competent and reliable scientific evidence. A suspended judgment of more than $47 million (the gross sales of the four products) could be imposed if Rubin or the company were found to have misrepresented their finances.¹¹

The FTC later brought contempt proceedings in 2011, alleging Garden of Life had violated the consent decree with newer product claims. A federal court in Florida denied the contempt motion in 2012, holding that the company’s reliance on independent expert opinions was sufficient and that the decree did not require it to run its own clinical studies.¹²

Ancient Nutrition operates as Ancient Brands, LLC, a Florida limited liability company based in Franklin, Tennessee. Co-founder Josh Axe is described in court filings as a “certified doctor of natural medicine, doctor of chiropractic and clinical nutritionist,” though the Viera complaint noted he does not hold a medical license.²

1
ClassAction.org. Class Action Alleges Ancient Nutrition Bone Broth Protein Powder Labels Mislead Consumers as to Protein Content, Quality
2
ClassAction.org. Bush et al. v. Ancient Brands, LLC – Complaint
3
MDL Cases. MDL No. 3117 Transfer Order
4
Bloomberg Law. Ancient Brands Exits False Ad Suit Over Bone Broth Protein
5
Drug and Device Law Blog. More Food Labeling Claims Preempted
6
Top Class Actions. Ancient Nutrition Class Action Claims Company Falsely Advertises Brain Health Supplements
7
Truth in Advertising. Viera v. Ancient Brands – Complaint
8
GovInfo. Vital Proteins LLC v. Ancient Brands, LLC
9
California Office of the Attorney General. Proposition 65 Consent Judgment – Ancient Brands, LLC
10
Federal Trade Commission. Dietary Supplement Maker Garden of Life Settles FTC Charges
11
Federal Trade Commission. Garden of Life – Federal Final Order and Judgment
12
The FDA Law Blog. District Court Decides That Garden of Life’s Expert Opinion Constitutes Competent and Reliable Evidence