April 13, 2012 Friday

by Victor Li, The American Lawyer

An Oakland, Calif., federal judge has allowed a purported class action to go forward alleging that the maker of Muscle Milk engaged in false advertising when it claimed that its product is a "nutritious snack" and and contains "healthy fats." At the same time, the judge dismissed other claims, finding that the plaintiff’s complaint was lean on facts, but giving her seven days to bulk up her allegations.

In an amended complaint filed last September, plaintiff Claire Delacruz, represented by Baron and Budd, 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.

In a 26-page opinion, 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.

Cytosport’s attorney, Gibson Dunn & Crutcher partner G. Charles Nierlich III, wrote in an email that he was pleased by the decision. "The Court has now limited the case to one phrase used on the back of the bottle of one product," wrote Neirlich. "This limited claim cannot form the basis of a nationwide class action. In addition, we look forward to showing that the one phrase remaining at issue in this case is not misleading in any way."

Meanwhile, Mark Pifko of Baron Budd, who was co-lead counsel for Delacruz along with Roland Tellis, told the Litigation Daily that he was glad that some of the case survived, and they would amend the complaint to comply with the judge’s order. "It’s significant that she allowed an advertising claim to go through because that contributes to the claim of deceptive product labeling," said Pifko. "We just need the right facts to allow some of the other advertising claims to stay in the case."

LOAD-DATE: April 14, 2012