Judge Rules Lawsuit Can Proceed Against CytoSport, Inc., Producer of Muscle Milk Products

On June 28,2012, a federal judge in California ruled that a false advertising class action against the makers of the popular Muscle Milk line of products can proceed. Delacruz v. CytoSport, Inc., Case No. 4:11-cv-03532-CW, 2012 WL 2563857 (N.D. Cal. June 28, 2012). The lawsuit alleges that CytoSport, Inc. misled consumers by describing its Muscle Milk bars and beverages using the words "healthy" and "nutritious" even though such products contain as much, if not more, fat, calories and sugar as unhealthy snacks such as donuts and candy bars. The complaint states that CytoSport's central message in its Muscle Milk advertising campaign is that its products do not contain unhealthy ingredients and provide a wide range of nutritional benefits, and that this message is misleading. The suit claims violations of the California Consumer Legal Remedies Act, California's Unfair Competition Law and False Advertising Law, as well as common law claims for fraud, negligent misrepresentation and unjust enrichment.

The suit centers around CytoSport's "Muscle Milk Ready-To-Drink" beverages and "Muscle Milk Bars" which claim to provide "healthy, sustained energy" and contain "healthy fats". In an amended complaint that was originally filed in July 2011, plaintiff claims she purchased these products believing they contained a healthy amount of fat, when according to FDA standards regarding the minimum requirements for a product to be considered "healthy", they do not. Plaintiff also raised claims with respect to other statements on Muscle Milk products, such as the actual number of fats listed and the assertion that such products contain "good carbohydrates" and "0g Trans Fat". The suit alleges that these additional statements compound the misleading nature of the statement that Muscle Milk products are "healthy". However, the court ruled that these additional statements were not actionable - first, plaintiff had made it clear that she was not alleging that the amount of fats stated on the products were misrepresented by CytoSport, only that such statements distracted customers from the unhealthy nature of Muscle Milk products. The court found that such a claim by itself could not support a separate cause of action because plaintiff was not disputing the exact amount of fats listed on the labels of Muscle Milk products. Second, plaintiff did not provide the court with objective criteria for determining whether Muscle Milk products contained "good carbohydrates", such as had been provided for the term "healthy". Nevertheless, plaintiff's suit was still permitted to move forward under the claim that Muscle Milk products were not as healthy as advertised.

This case was filed shortly after CytoSport had received a warning letter from the FDA last summer asserting that it had violated a number of FDA regulations. The warning letter accused CytoSport of making unauthorized claims on its Muscle Milk labels by claiming its products were "healthy" and of violating FDA regulations because products cannot be labeled "healthy" unless they are low-fat and low in saturated fat. The FDA's letter noted that Muscle Milk products exceeded the permissible levels of such fats. FDA regulations should be consulted before making statements regarding the health benefits of a food product, as the use of seemingly innocuous terms can have unfortunate regulatory consequences if used inappropriately.

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