David Protein has scored an initial victory in a high-profile anti-trust case brought by three firms alleging that it acquired alt-fat maker Epogee to “exclude competitors and create an artificial monopoly.”
The dispute began last summer after David Protein acquired a foodtech firm called Epogee, which makes an ingredient called EPG that looks and functions like fat, with a fraction of the calories.
Three Epogee customers—OWN Your Hunger, Lighten Up Foods, and Defiant Foods—claim that they built their business around EPG only to abruptly lose access, and filed a lawsuit* accusing David of anti-competitive behavior. Several other food companies that had used EPG in their formulations also signed sworn statements outlining the harm they suffered after losing access to the novel ingredient.
David Protein, however, says it is under no obligation to keep selling EPG to firms that have not signed long-term supply contracts and says formulators can choose from an “abundance” of alternatives to the patented ingredient.
In a 32-page order issued Wednesday, US district judge Victor Marrero sided with David, granting its motion to dismiss the case. He also denied the plaintiffs’ request for an injunction forcing David to keep supplying them with EPG while the case proceeds.
Judge: Plaintiffs have not shown David’s conduct harmed competition in the relevant market
Marrero said the plaintiffs failed to show that David’s conduct harmed competition in a relevant market, suggesting that they inconsistently defined that market as both “low-calorie indulgence foods” and the “global market for EPG supply.”
If the market is low-calorie indulgent foods, he wrote, the plaintiffs did not explain why consumers would view their sauces, nut spreads, and chocolates as “reasonably interchangeable” with David’s protein bars. And if the market is EPG supply, they failed to allege any competitive harm — such as reduced output, higher prices, or lower quality.
“Plaintiffs’ elimination as purchasers of EPG does not constitute reduced output in the economic sense,” Marrero added, noting that the premium pricing of David’s bars was not shown to result from anti-competitive behavior.
Plaintiffs: ‘We remain confident in our case’
Brittany Meyer, who represents the plaintiffs, told AgFunderNews the battle is not over: “This was a ruling on the sufficiency of our pleading, not a determination of the facts or the legality of defendants’ conduct. The court has given us 10 days to seek leave to amend our complaint and address the issues identified in the ruling, and we intend to do exactly that. We remain confident in our case.”
David Protein CEO Peter Rahal did not immediately respond to a request for comment. However, David has argued in court filings that it is “hard to imagine any consumer thinking he needs to choose between one plaintiff’s chicken sauce and another plaintiff’s chocolate bars; they do not compete with one another.”
As David owns Epogee’s patents on EPG, meanwhile, it is under no obligation to sell EPG to other companies, claims the firm, which says it needs “all available EPG supply at present to meet continued growing demand for our own products.”
What is EPG?
- EPG (esterified propoxylated glycerol) is a fat that contains 0.7 calories per gram, compared with 9 calories for regular fat.
- It’s not Olestra: Unlike Olestra, which had a lower melting point (and messy side effects) or fat replacers made from sugars, gums, starches or fibers, EPG functions like fat because it’s made from fat, says Epogee.
- Low-calorie: As EPG is resistant to lipase, an enzyme that breaks down fat in the body, hardly any of its calories are released.
- Labeling: EPG can be listed on food labels as ‘EPG (modified plant-based oil)’
- How it’s made: Epogee splits plant-based oils such as canola into glycerin and fatty acids, inserts a food-grade link, and reconnects them.
*The case is OWN Your Hunger, Lighten Up Foods, and Defiant Foods vs Linus Technology (which operates under the trade name David Protein), Epogee, and Peter Rahal, filed in the Southern District of New York on June 2, 2025. Case: 1:25-cv-04544
Further reading:
More EPG customers share tales of woe in David Protein, Epogee litigation
Peter Rahal, David Protein, sued over ‘bait & switch’ scheme to monopolize Epogee’s fat replacer
