Muscle Milk Fraud Case Isn’t Going Anywhere

     SAN FRANCISCO (CN) – A federal judge has set a hearing to certify a class of consumers allegedly duped into buying Cytosport’s line of Muscle Milk products.
     Lead plaintiff Claire Delacruz filed a second amended complaint after U.S. District Judge Cynthia Wilken directed her in April to amend the defects in her false advertising and misrepresentation complaint against Cytosport.
     Wilken barred Delacruz from contradicting any of the allegations from her first complaint and from adding any other causes of action.
     The second amended complaint took aim at Cytosport’s “protein nutrition shake” and its claims that “Muscle Milk is an ideal blend of protein, healthy fats, good carbohydrates and 20 vitamins and minerals to provide sustained energy, spur lean muscle growth and help provide recovery from tough days and tougher workouts.”
     Delacruz says the label issues are compounded by false statements on the company’s website, which touts “healthy sustained energy” and “healthy fats.” The website also allegedly promotes MuscleMilk bars by saying that “there’s no question [consumers are] getting a nutritious snack.”
     Other changes to the new complaint include a challenge to “the use of the healthy-sounding ‘Muscle Milk'” name. Delacruz also says the false and misleading nutrient content claims are illegal, and she parses the Cytosport’s use of the terms “healthy fats” and “good carbohydrates,” claiming that the fats are actually saturated fats and the carbohydrates are from simple sugar fructose, which leads to an increased risk of Type 2 diabetes.
     Citing Food and Drug Adminstration regulations, Delacruz now calls Cytosport’s claims false and misleading. She says that California law adopted the requirements of federal food-labeling regulations.
     Wilkens declined to order judicial estoppel last week after concluding that none of Delacruz’s allegations exceed the limits she set in April.
     “Rather, the allegations respond to the court’s ruling that certain words and phrases failed to support a claim for fraud or negligent misrepresentation because they were difficult to define and not clearly false,” Wilkens wrote. “The FDA regulations may lend objective criteria by which to determine whether certain words and phrases used on the labels are misleading. Moreover, the new allegations do not impose on Defendant any unfair detriment.”
     “Plaintiff cannot be faulted for adding these allegations in light of the court’s ruling that her allegations as to the falsity of the product labeling were inadequate. Judicial estoppel is unwarranted,” Wilkens added.
     The judge also rejected Cytosport’s argument that federal law pre-empts Delacruz’s references to FDA regulations, noting that a provision of the Federal Food, Drug and Cosmetic Act “authorizes states to establish laws that are ‘identical to’ federal labeling requirements.”
     Wilkens said that the latest complaint better addresses the difficult-to-define healthy products.
     “Plaintiff now provides objective standards, such as the requirements identified by the FDA, which could evidence that certain contents in a product are not healthful,” Wilkens wrote. “A representation that a product is ‘healthy’ could reasonably lead a consumer to believe that certain unhealthy contents are absent from the product. For the purpose of this motion to dismiss, the ‘Healthy, Sustained Energy’ statement on the RTD [Ready-to-Drink] labels is a cognizable misrepresentation.”
     This time around, Delacruz has also tied her claims to reliance on Cytosport’s allegedly misleading website and televised advertisements, the decision states.
     Cytosport cannot dismiss or stay the case on basis of primary jurisdiction, Wilkens added, denying its insistence that the California law claims require scientific or technical FDA expertise.
     The judge did find, however, that the misrepresentation claims regarding “good carbohydrates” and “0g Trans Fat” are not actionable. Wilkens also dismissed a claim that Cytosport’s long-standing advertising campaign misled the public.
     Delacruz can fight for class certification at the next case management conference on Nov. 8.

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