More nutrient content class action woes as Muscle Milk lawsuit proceeds

In a suit filed last summer in California, Claire Delacruz alleged that Cytosport had misled consumers by describing Muscle Milk bars and beverages as “ nutritious snacks,” when they were in fact nutritionally equivalent to “ fat-laden junk food”. The case is the latest in a string of class action lawsuits filed in California focusing on alleged labeling violations, targeting companies from PepsiCo (Frito Lay) to Bumble Bee , with a particular focus on the criteria for making nutrient content claims. Plaintiff: Products are loaded with fat Delacruz claimed that Muscle Milk bars were high in saturated fat and added sugars and that phrases such as ‘Healthy, Sustained Energy’, ‘0g Trans Fat’, ‘healthy fats’ and ‘good carbohydrates’ were therefore misleading. Meanwhile, the ready-to-drink (RTD) Muscle Milk products were “ loaded with as much, if not more, total fat and saturated fat as a doughnut ”, she claimed. The case was filed shortly after the FDA sent a warning letter to Cytosport alleging that Muscle Milk products were misbranded – in part because they made certain nutrient content claims - promising ‘healthy sustained energy’ - without adhering to the legal conditions of use attached to such claims. To bear the nutrient content claim ‘healthy’, foods must have a total fat content of 3g or less per reference amount customarily consumed (RACC); 1g or less saturated fat per RACC; and no more than 15% of calories from saturated fat. However, chocolate Muscle Milk protein nutrition shakes contain more than 3g of fat per RACC while the chocolate peanut caramel bar contains more than 3g total fat and 1g saturated fat per RACC. Cytosport: ‘A complete absence of factual allegations’ However, Cytosport filed a motion to dismiss Delacruz’s suit, citing a “ complete absence of factual allegations supporting [her] broad assertions” and noting that “ many healthy, nutritional products contain at least some… fat ”. US district judge Claudia Wilken challenged many of Delacruz’s claims, but allowed her to amend her complaint. Cytosport immediately sought to dismiss the amended complaint, which claimed that Muscle Milk Bars “ contain as many calories, as much sugar, and more grams of saturated fat and sodium” than a Snickers bar. Moreover, as the 14oz RTD Muscle Milk product does not qualify as a ‘low fat’ product under FDA regulations, Cytosport is not permitted to use the term ‘healthy’ on product labels, argued Delacruz. Judge: Lawsuit can proceed Ruling on the case last week, Wilken said Cytosport’s second attempt to dismiss the lawsuit is “ granted in part and denied in part ”. She added: “ The claim as to misrepresentations based on the ‘good carbohydrates’ statement, the allegation that the ‘0g Trans Fat’ statement distracts consumers from the product’s unhealthy fat and saturated fat content, and the claim that a long-standing advertising campaign misled the public are not actionable.” But she added: “A representation that a product is ‘healthy’ could reasonably lead a consumer to believe that certain unhealthy contents are absent from the product. “For similar reasons, the Court finds that the statement ‘25g protein for healthy, sustained energy’ contained in the label for the bars is also actionable. The statement conveys that the bars are a healthy source of energy and, thus, may imply that they do not contain an unhealthy amount of fat and saturated fat.” Plaintiff’s attorney: ‘Court upheld bulk of our amended pleading’ Mark Pifko from law firm Baron and Budd – representing Delacruz – said Wilken’s order was good news for his client: “ Cytosport filed a motion to dismiss our amended complaint… and the court issued a ruling denying their arguments and upholding the bulk of our amended pleading. "This is an important step towards our client’s goal of holding CytoSport accountable for its false and misleading representations. CytoSport is capitalizing on a health and wellness trend among consumers who are prepared to pay more for products offering a wide range of nutritional benefits. But, you can’t just whip-up a blend of saturated fat, fractionated oil and added sugars, and slap a ‘healthy’ label on it.” Cytosport did not respond to requests for comment.

More nutrient content class action woes as Muscle Milk lawsuit proceeds

A legal dispute over Muscle Milk bars and sports beverages has moved into a new phase after a federal judge ruled an amended false advertising lawsuit against brand owner Cytosport can proceed.

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Attorney in Muscle Milk lawsuit: ‘You can’t just whip-up a blend of saturated fat and fractionated oil, and slap a ‘healthy’ label on it’