Plaintiffs face setback in David Protein and Epogee lawsuit

A recent legal battle between David Protein and alt-fat maker Epogee took a turn as a judge denied a request to grant a temporary restraining order against David Protein. The lawsuit, which stemmed from David’s acquisition of Epogee, was filed by three small food companies who claimed that they were unable to access Epogee’s novel fat (EPG) after the acquisition. These companies alleged that David Protein was trying to exclude competitors and create a monopoly in the market.

The plaintiffs, OWN Your Hunger, Lighten Up Foods, and Defiant Foods, argued that they had invested a significant amount of money in developing products around EPG, only to be cut off from their supply when David Protein took over Epogee. They sought a temporary restraining order to prevent David from restricting access to EPG for existing customers and qualified food manufacturers who had previously used the fat.

However, Judge Victor Marrero ruled that the plaintiffs had not demonstrated a likelihood of success in their antitrust or monopoly claims. He pointed out that the plaintiffs were not direct competitors with David Protein, as they specialized in low-calorie sauces, nut spreads, and chocolates, while David Protein focused on protein bars. Additionally, the judge noted that EPG is a patented product, and the plaintiffs had not shown that there were no interchangeable substitutes for EPG in the market.

David Protein argued that they were not obliged to sell EPG to the plaintiffs, as Epogee held four patents covering the production of EPG. They claimed that there were numerous other fats and fat substitutes available on the market and that the plaintiffs had failed to secure a long-term supply agreement with Epogee before the acquisition.

The plaintiffs alleged that Epogee had started reporting shortages of EPG in March and had misled customers about the availability of supplies until May when they announced that they would no longer accept new orders. The plaintiffs accused David and Epogee of creating artificial market conditions through systematic supply denial and market manipulation.

EPG, short for esterified propoxylated glycerol, is a unique fat replacer that only contains a fraction of the calories found in traditional fats. Made by splitting plant-based oils into glycerin and fatty acids, inserting a food-grade link, and reconnecting them, EPG is resistant to the enzyme lipase, which breaks down fat in the body. This makes EPG highly appealing to companies looking to reduce calorie content in their products.

While the legal battle between David Protein and the plaintiffs continues, the case sheds light on the complexities of the food industry and the challenges faced by companies in securing innovative ingredients for their products. The outcome of this lawsuit could have significant implications for the future of fat replacers in the market and the competition between food manufacturers seeking to create innovative, low-calorie products.