In a suit filed last summer in a federal court in the northern district of 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”.
Plaintiff: Products are loaded with fat
Delacruz claimed that Muscle Milk bars were high in saturated fat (one chocolate peanut caramel Muscle Milk bar contains 300 calories and 8g saturated fat) and contained “almost no vitamins and minerals”.
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.
Cytosport: ‘A complete absence of factual allegations’
However, Cytosport filed a motion to dismiss her suit, citing a “complete absence of factual allegations supporting [Delacruz’s] broad assertions”.
As for the fat content in Muscle Milk products, “many healthy, nutritional products contain at least some amount of fat”, noted the company.
“Plaintiff offers no cognizable legal theory to support why she believes that products that contain levels of fat well below the recommended daily amounts, at least twice as much protein as fat, and a host of vitamins, minerals, and other nutrients, are not properly labeled ‘healthy’ or ‘nutritional’.”
Judge: Plaintiff has seven days to amend complaint
Ruling on the case last week, US district judge Claudia Wilken granted the motion to dismiss, “except to the extent that it challenges Plaintiff’s claims based on the misrepresentations on the 14oz Muscle Milk RTD packaging”, but gave Delacruz leave to amend her complaint.
She added: “Having considered all of the parties’ submissions and oral argument, the Court grants in part Defendant’s motion to dismiss and denies it in part.”
Cytosport: ‘This limited claim cannot form the basis of a nationwide class action’
A Cytosport spokesman told NutraIngredients-USA: “We are pleased that the court has dismissed nearly all of the claims brought in this case. The court has now limited the case to one phrase used on the back of the bottle of one product.
“This limited claim cannot form the basis of a nationwide class action, and we look forward to resolving this remaining issue.”
Plaintiff’s attorney: ‘You can’t just whip-up a blend of saturated fat and fractionated oil, and slap a ‘healthy’ label on it’
However, Mark Pifko from law firm Baron and Budd – respresenting Delacruz – said he would be “filing an amended complaint by Wednesday of this week to address some of the Court’s concerns”.
He added: “Cytosport is preying on a community that wants to be healthy, but instead of helping it is contributing to America’s obesity epidemic. You can’t just whip-up a blend of saturated fat and fractionated oil, and slap a ‘healthy’ label on it.”
FDA warning letter
A warning letter sent to Cytosport by the Food and Drug Administration on June 29, 2011, said 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.
Specifically, to bear the nutrient content claim ‘healthy’, said the FDA, 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 percent 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.
Similarly, the bar also includes a ‘0g trans fat’ nutrient content claim, but fails to include an adjacent disclaimer stating ‘See nutrition information for fat content’ given that it exceeds the threshold level for saturated fat, said the FDA.