Monthly Archives: May 2014

Muscle Milk Target of Another False Advertising Claim


Cytosport, Inc., maker of MUSCLE MILK protein shake products, is the target of a false advertising claim under the Lanham Act brought by Global Beverage Enterprises, Inc. which markets beverages under brand names such as MR. Q. CUMBER and SWEET BLOSSOM.  Although Global Beverage’s products are not protein shakes, it alleges that its beverages are displayed alongside MUSCLE MILK roducts in the same beverage coolers at Fresh Market s

Global Beverage claims that the Cytosport products are misleading because they prominently display the term MUSCLE MILK even though they do not contain milk and that this has the effect of suggesting to consumers that its products  “are healthier beverages when compared to competitor’s products, including the Plaintiff’s products.”  Global Beverage asserts that these “deceptive efforts” include marketing products (i) in flavors traditionally associated with milk such as ‘chocolate’ and ‘chocolate malt’ and terms traditionally associated with milk as ‘chocolate malt’ and ‘shake'” and (ii) as  “lactose free” which is a phrase “that would only be associated with a product containing milk.”

This case is noteworthy for two key reasons.  First, Global Beverage’s products are not protein shakes or milk products which undermines its allegation that it is harmed by the marketing of Cytosport’s products.  In this regard, Global Beverage alleges that its beverages are displayed alongside MUSCLE MILK products in the same beverage coolers at Fresh Market stores nationwide and that they therefore “compete.”  Pursuant to recent Supreme Court precedent, a plaintiff has standing to bring false advertising claims under the Lanham Act if can (1) allege an injury to a commercial interest in reputation or sales; and (2) show that such injury was proximately caused by defendant’s misrepresentations.   Because it does not appear that the parties’ products are directly competitive, both of these elements are likely to be tested in this litigation.

Second, as shown in the above image taken from Global Beverage’s complaint, MUSCLE MILK products include the statements “contains no milk” and “includes milk proteins” directly below the product name on the front label.  In  2010, the Federal Trade Commission (FTC) reviewed the use of “Muscle Milk” in connection with the “contains no milk” disclaimer and found the label was not deceptive to consumers.  One year later, the FDA took a different view and sent Cytosport a warning letter stating that the MUSCLE MILK products are misbranded because they (a) prominently feature the word “MILK” but contain no milk with the actual statements of identity (“Protein Nutrition Shake” and “Nutritional Shake”) in significantly smaller and less prominent type and (b)  contain certain milk-derived ingredients but the “Contains No Milk” disclaimer could give consumers the impression that these products are free of milk-derived ingredient, which is especially relevant with respect to allergens.  Presumably, the “Includes Milk Proteins” statement directly below “Contains No Milk” was added in response to these concerns.

The lawsuit is pending as Case No. 0:14-cv-60950 in the U.S. District Court for the Southern District of Florida.





GMA States it will Challenge Vermont GMO-Labeling Bill

On May 8th, Vermont Governor Peter Shumlin signed into law the nation’s first GMO labeling law requiring that food offered for retail sale that is entirely or partially produced with genetic engineering must be labeled as such by July 2016.  Ballot initiatives to require GMO labeling failed in California and Washington while Maine and Connecticut passed laws that do not go into effect until other states pass GMO-labeling laws.

The Grocery Manufacturers’ Association (GMA) has already announced plans to challenge the new law, stating in relevant part:

Today, Vermont Governor Peter Shumlin signed into law HB 112, a bill that is critically flawed and not in the best interests of consumers.  It sets the nation on a costly and misguided path toward a 50-state patchwork of GMO labeling policies that will do nothing to advance the safety of consumers.

GM crops are safe and have important benefits for people and our planet.  They use less water and fewer pesticides, reduce crop prices by 15-30 percent and can help us feed a growing global population of seven billion people.  ….

Consumers who prefer to avoid GM ingredients have the option to choose from an array of products already in the marketplace labeled ‘certified organic.’ The government therefore has no compelling interest in warning consumers about foods containing GM ingredients, making this law’s legality suspect at best.  In light of this fact, in the coming weeks GMA will file suit in federal court against the state of Vermont to overturn the law.

See the GMA’s complete press release here.

Consumer’s right to know or compelled speech that violates the First Amendment?  The final answer to this compelling question is still many years away.