Plaintiff Must Add Heft to Muscle Milk Case

     SAN FRANCISCO (CN) – A woman who claims she was duped into believing “Muscle Milk” products were healthy and would help her lose weight must improve her misrepresentation claims in order to proceed with a class action, a federal judge ruled.
     In her suit against Cytosport Inc., the maker of Muscle Milk drinks and energy bars, Claire Delacruz alleged violations of California’s consumer protection, unfair competition, and false advertising laws, as well as fraud and negligent misrepresentation. She also said that Cytosports’ extensive media campaign leads consumers to believe that its products are healthy and nutritious, and “should be regularly consumed to help them diet and live a healthy lifestyle.”
     However, “with almost 50 percent of their caloric content coming from fats, the products are equivalent to fat-laden junk food,” Delacruz said, while going on to allege that Cytosport’s Muscle Milk Ready-to-Drink contains the same number of calories and almost as much fat and saturated fat as a cream-filled Krispy Kreme doughnut.
     U.S. District Judge Claudia Wilken agreed that Cytosports’ claim that “healthy fats” on its Muscle Milk Ready-to-Drink packaging might mislead consumers.
     “This representation is more specific than simply that the product is healthy. As between saturated and unsaturated fats, the latter is the healthy fat. A reasonable consumer would be likely to believe that the drink contains unsaturated, not saturated, fats,” Wilken wrote.
     “The drink container also states that it is a ‘nutritional shake.’ This representation, while ‘difficult to measure concretely’ … contributes to a sufficient claim of deceptive product labeling,” she added.
     But Delacruz’s complaint is lacking in detail, according to Wilken.
     “Plaintiff alleges that the ‘healthy, sustained energy’ claim on the [Ready-to-Drink] seventeen ounce container is false and misleading. However, the 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.
     “While plaintiff alleges that Muscle Milk [Ready-to-Drink] contains unspecified amounts of saturated fat that are equal to or exceed that in certain Krispy Kreme doughnuts, this analogy is not helpful,” Wilken said, objecting to the lack of clarification as to the fat content of Krispy Kremes in Delacruz’s complaint.
     And Cytosport’s ad campaign of “Go from cover it up to take it off,” “From invisible to OMG!” and “From frumpy to fabulous” are “non-actionable puffery,” Wilken said.
     However, Delacruz has alleged an economic injury because of the alleged misrepresentations, even if she didn’t adequately plead a reliance on the ad campaign according to the judge.
     “In sum, plaintiff’s claim that the ‘healthy fats’ and ‘nutritious snacks’ statements on the label for 14 ounce Muscle Milk RTD were misleading, her implication that she read the label and her claim that she relied on the label in deciding to buy the drink when she otherwise would not have is sufficient to state her claims,” Wilken wrote.
     Delacruz’s reading of Muscle Milk’s label claims also helped her plead an unfair business practice claim, the judge concluded.
     Delacruz has seven days to file an amended complaint that remedies the defects in her arguments, but may not add additional causes without Wilken’s permission.

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