Less than two weeks after a consumer fraud class action was filed in California
against the company that makes Muscle Milk® beverages and protein bars,
the Food and Drug Administration (FDA) sent a letter to its CEO warning
that the products are misbranded because their labels either prominently
feature the word “milk” without containing any or state that they contain
no milk while made of milk-derived ingredients. The letter also warns that
health-related claims or “0 trans fat” assertions are unauthorized because the
products contain too much fat or too much saturated fat. The June 29, 2011,
letter demands a response within 15 days of receipt. Additional information
about the lawsuit appears in Issue 403 of this Update.

According to a news source, CytoSport has indicated that it is “proactively
and openly addressing the FDA’s labeling concerns” and also notes, “Concerns
like this have been raised before when the dairy lobby complained that other
industries or products like Soy Milk, Almond Milk, Coconut Milk and Rice
Milk are using the name ‘milk’ in connection with a product other than fluid
dairy milk, all of which appeal to lactose intolerant consumers just as Muscle Milk does.” Meanwhile, a dairy industry spokesperson reportedly said, “We are gratified that the FDA has finally gotten off its duff and done something with respect to at least one product.” See (Milwaukee) Journal Sentinel, July 31, 2011.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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