News, musings and commentary on dietary supplements & pharmaceutical law issues, technology, and litigation.
Lawyers for consumers and injured people.(No advice on this blog, though)
Wednesday, April 18, 2012
Muscle Milk Class Action Suit Needs Some Beefing Up Says Court
Claire Delacruz, has accused Cytosport of false advertising and misrepresenting the nutritional effects of its Muscle Milk. Specifically, Delacruz alleged that Cytosport used false and misleading terms such as "healthy fats" and "good carbohydrates" on its drink containers, and that its Muscle Milk bars were actually unhealthy and contained as many calories as a chocolate glazed Krispy Kreme doughnut. In addition to state consumer protection and false advertising laws, Delacruz also brought common law fraud and unjust enrichment claims.
Federal district court judge Claudia Wilken found the complaint light on some facts. "[T]he term ‘healthy’ is difficult to define and Plaintiff has not alleged that the drink contains unhealthy amounts of fat, saturated fat or calories from fat, compared to its protein content, based on any objective criteria," wrote Wilken. She also found that many of the claims on the packaging–such as "go from cover it up to take it off" and "from frumpy to fabulous"–was mere puffery.
Wilken, however, held that Muscle Milk’s claims to be a "nutritious snack" and to contain "healthy fats" were actionable, and refused to dismiss the causes of action relating to those phrases, which were printed on the bottle for Cytosport’s 14-ounce Muscle Milk drink. "This representation is more specific than simply that the product is healthy," Wilken wrote. To the extent that Delacruz relied on those phrases and bought Muscle Milk, Wilken allowed her state and common law claims to proceed.
"Plaintiff alleges that Defendant has concealed material facts about its products, but does not specify what has been concealed and why it is material. In sum, the sole cognizable misrepresentation that Plaintiff has plead is the “healthy fats” statement on the fourteen ounce Muscle Milk® RTD container, buttressed by the “nutritious snack” statement. "
So, Plaintiff's Complaint is dismissed, and she has a week to amend.