Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Cal.: Muscle Milk® labeling challenges are too strong to dismiss, (Aug 25, 2015)

By Bryant Storm, J.D.

Consumer allegations that Cytosport Inc.’s labeling regarding the presence and effect of certain ingredients in the manufacturer’s Muscle Milk® and protein supplement products was misleading survived Cytosport’s motion to dismiss. Cytosport asserted that the state unfair trade practices and consumer protection claims were preempted or should be stayed under the doctrine of primary jurisdiction. The court, however, held that the consumer allegations were sufficient to state a claim that the labeling was misleading (Clay v. Cytosport Inc., August 19, 2015, Lorenz, J.).

Misrepresentation. Chayla Clay, Erica Ehrlichman, and Logan Reichert purchased several of Cytosport’s Muscle Milk products. The consumers specifically challenged the labeling and marketing of Cytosport’s Muscle Milk and Cytosport branded protein products by alleging that Cytosport misrepresented (1) the amount of protein; (2) the presence of unbonded L-Glutamine; and (3) the nature of the fat contents. The consumers brought claims under California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA); Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA); and the Michigan Consumer Protection Act, alleging that the product labeling constituted misrepresentation and rendered the products misbranded.

Preemption. Cytosport alleged that the claims were preempted by the federal Food, Drug, and Cosmetic Act (FDC Act) because the consumers sought to impose requirements that were inconsistent with the labeling requirements mandated by the U.S. Food and Drug Administration (FDA). Specifically, Cytosport argued that the consumers’ claims regarding protein and L-glutamine content were insufficient because they did not rely on a testing methodology that conformed to the FDA mandated testing methodology for protein calculation tests.

While the court acknowledged that the consumers relied on an independent third party source for the protein testing data cited in the complaint, the court reasoned that the data was sufficient to support the allegations. The court explained that while the FDA requires a specific protein testing protocol for manufacturers and distributors like Cytosport, that same standard did not necessarily apply to consumer pleadings in a misbranding case. The court held that the sources the consumers relied upon to show that Cytosport “provides less protein than that advertised on its Muscle Milk” products were sufficient to state a claim.

Tolerances. Cytosport also argued that even if the consumers were deemed to have alleged a violation of FDA requirements, four of the five ready-to-drink protein products fell within FDA-allowed tolerances. Cytosport alleged that because four of the five products qualified as Class II nutrients (“naturally occurring (indigenous) nutrients”) they still complied with federal law by containing 80 percent of the protein value declared on the label. The consumers disagreed with the Class II designation and asserted that the products were properly considered Class I (“added nutrients in fortified or fabricated foods”), which required 100 percent compliance with label declarations of protein value. The court agreed with the consumers because Cytosport made no argument as to why the protein in question qualified as Class II rather than Class I.

L-glutamine. Cytosport challenged the consumers’ claims that the inclusion of L-glutamine as an ingredient on the products was misleading because it “implies that free-form or unbonded L-glutamine will be included in the products.” Cytosport asserted that it was permitted to list L-glutamine because it was a component in the products’ “protein blend.” The court disagreed with Cytosport and reasoned that, taken as true, the consumers’ claims sufficiently alleged that the labeling regarding L-glutamine was misleading. The court used the same reasoning to deny Cytosport’s attempt to dismiss the consumers’ claims that Cytosport breached a warranty regarding the protein amounts.

Lean. The consumers also alleged that Cytosport violated FDC Act labeling requirements by using the term “lean.” Cytosport countered by arguing that the labeling doesn’t use the term to make a nutrient content claim, but, instead, to describe the type of muscle the Cytosport products are designed to help consumers develop — “lean muscle.” The court disagreed with the manufacturer and held that the statement “Lean Muscle Protein Powder” could plausibly suggest a low amount of fat, making it a nutrient content claim.

Primary jurisdiction. The court also rejected Cytosport’s request that the case be stayed under the doctrine of primary jurisdiction. The court reasoned that the doctrine, which is typically invoked to allow administrative expertise or uniformity to assist judicial decisions, was inappropriate in the present case because the court was “well-equipped” to handle the issues presented in the lawsuit. The court also rejected Cytosport’s argument that the consumers lacked standing to challenge certain products they did not purchase. The court held that the issue was prematurely raised and that the question of class representation would be revisited at a later stage in the litigation.

The case is No. 15-cv-165 L (DHB).

Attorneys: Trenton R. Kashima (Finkelstein & Krinsk, LLP) for Chayla Clay. Christine R. M. Kain (Faegre & Benson LLP) and David P. Burke (Neil Dymott Frank McFall & Trexler) for Cytosport, Inc.

Companies: Cytosport, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews