A federal court in California has granted final approval to the nationwide class settlement of claims that the company which makes Muscle Milk® products deceived consumers by labeling them with the terms “Healthy, Sustained Energy” and “Healthy Fats.” Delacruz v. CytoSport, Inc., No. 11-3532 (N.D. Cal., order entered July 1, 2014). Additional information about the litigation and settlement appears in Issues 403, 436, 475, and 505 of this Update. Under the agreement, CytoSport will pay $1 million to eligible class members and cease using the allegedly deceptive terms on all newly printed packaging for certain products. The company may continue to use the designation “Healthy Fats” on the packaging for Muscle Milk® RTD and related products if they contain “fewer than 0.5 grams of saturated fat per serving, or CytoSport also includes the words ‘See nutrition information for saturated fat content’ in connection with the words ‘Healthy Fats.’” The court also awarded…
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A federal court in New York has denied in part and granted in part the motion to dismiss filed by the defendants to consumer-fraud litigation claiming that their Smart Balance® Fat-Free milk products with added omega-3s are misbranded because they contain 1 gram of fat from the omega-3 oil blend ingredient. Koenig v. Boulder Brands, Inc., No. 13-1186 (S.D.N.Y., order entered January 31, 2014). The court determined that the state law-based claims were not preempted by federal food labeling laws, whether the claims involve the application of milk regulations as argued by the plaintiffs or combination product requirements as argued by the defendants. Among other things, the court refused to find the defendants’ “combination products” preemption theory tenable because (i) it was based on FDA compliance policy guides, “which constitute advisory opinions”; (ii) the defendants failed to cite any FDA policy or regulations directly addressing the milk products at issue…
A recent study has reportedly claimed that diets high in calories and animal fat are associated with increased rates of Alzheimer’s disease (AD) in Japan and eight other countries. William Grant, “Trends in Diet and Alzheimer’s Disease During the Nutrition Transition in Japan and Developing Counties,” Journal of Alzheimer’s Disease, September 2013. Using nutrition data supplied by the U.N. Food and Agriculture Organization, Sunlight, Nutrition and Health Research Center Director William Grant compared AD trends in Japan with changes in national dietary supply factors, alcohol consumption and lung cancer mortality rates over 25 years, in addition to comparing AD trends in eight developing countries with changes in national dietary supply factors over the same time period. The results evidently showed that in Japan, “alcohol consumption, animal product, meat and rice supply, and lung cancer rates correlated highly with AD prevalence data, with the strongest correlation for a lag of 15-25…
A recent article detailing the history of food addiction studies has claimed that foods dense in fat and sugar can override our appetite suppressing hormones, activate our neurological reward systems and prompt us to continue eating past the point of satiety. Paul Kenny, “Is obesity an addiction?,” Scientific American, September 2013. According to author Paul Kenny, a neuroscientist with The Scripps Research Institute, obesity in some cases may be caused “by hedonic overeating that hijacks the brain’s reward networks,” thus creating “a feedback loop in the brain’s reward centers—the more you consume, the more you crave, and the harder it is for you to satisfy that craving.” Asking whether this cycle of hedonistic overeating constitutes an addiction, Kenny not only describes several studies that seem to highlight the similarities between drug addiction and obesity, but also explains important differences between the two conditions. In particular, he notes that “research overall indicates…
A new study examining the effect of diet on Alzheimer disease (AD) development has reportedly linked diets high in saturated fat to increased levels of lipid-depleted β-amyloid peptides (LD Aβ) in the brain. Angela Hanson, et al., “Effect of Apolipoprotein E Genotype and Diet on Apolipoprotein E Lipidation and Amyloid Peptides,” JAMA Neurology, June 2013. According to the study, which notes that the Aβ peptides partly responsible for AD “can be bound to lipids or to lipid carrier proteins, such as apolipoprotein E (ApoE), or be free in solution,” “levels of LD Aβ are higher in the plasma of adults with AD, but less is known about these peptides in the cerebrospinal fluid (CSF).” The researchers thus measured the levels of LD Aβ42, LD Aβ40 and ApoE in the CSF of 20 older adults with normal cognition and 27 older adults with mild cognitive impairment (MCI), with randomized members of…
A recent World Health Organization-commissioned meta-analysis has reportedly concluded that diets lower in fat can reduce relative body weight by 1.6 kg, BMI by 0.56kg/m2 and waist circumference by 0.5 cm. Lee Hooper, et al., “Effect of reducing total fat intake on body weight: systematic review and meta-analysis of randomized controlled trials and cohort studies,” BMJ, December 2012. After analyzing results from 33 randomized control trials involving 73,589 participants and 10 cohort studies, researchers apparently found “high quality, consistent evidence that reduction of total fat intake has been achieved in large numbers of both healthy and at risk participants over many years.” In particular, the meta-analysis suggested that each 1 percent reduction in energy from total fat “resulted in a 0.19 kg reduction in body weight, compared with not altering total fat intake, in populations with 23-43% of energy from total fat, and in studies of six months to over…
PepsiCo, Inc. has reportedly launched a “fat-blocking” soda in Japan, sparking media interest in the latest product to take advantage of a Japanese government study finding that the water-soluble fiber supplement dextrin blocks fat absorption in the digestive system. According to various sources, “Pepsi Special” containing “indigestible dextrin” has received a “Food for Specified Heath Uses” label in Japan, which awards the designation to products with a demonstrated health benefit. Although Pepsi Special will not be available in markets outside Japan, the product has already attracted criticism from scientists and consumer groups questioning whether dextrin is as safe and effective as advertised. “Unless Pepsi can provide data from controlled studies in humans to the contrary, their claim should be regarded as bogus and deceptive,” Harvard School of Public Health Chair of Nutrition Walter Willett told Time magazine. This sentiment was echoed by Center for Science in the Public Interest Executive Director…
Danish lawmakers have killed a controversial “fat tax” one year after its implementation, finding that the tax’s negative effect on the economy and small businesses far outweighed any health benefits. According to news sources, nations such as Germany, Switzerland and the United Kingdom have held up the tax, which applies to foods containing more than 2.3 percent saturated fat, as a potential model for addressing obesity and other health concerns. But in Denmark, the tax has become a source of pain for consumers, food producers and retailers as the nation’s economy struggles. The Danish tax ministry has evidently said that fat and sugar taxes have drawn criticism for increasing prices for consumers and companies alike, and putting Danish jobs at risk, as well as for encouraging Danes to travel across the border to buy cheaper foods. As the tax ministry thus stated, “The suggestions to tax foods for public health…
A recent study has reportedly claimed that higher saturated fat (SFA) intake “was associated with worse global cognitive and verbal memory trajectories” in women aged 65 years or older. Olivia Okereke, et al., “Dietary fat types and 4-year cognitive change in community dwelling older women,” Annals of Neurology, May 2012. Harvard Medical School researchers evidently analyzed data from 6,183 participants in the Women’s Health Study over a four-year period, finding that those in the highest quintile for SFA consumption had “a higher risk of worst cognitive change” than their counterparts in the lowest quintile. At the same time, however, higher monounsaturated fat (MUFA) intake was related to better global cognitive and verbal memory trajectories. These results apparently led the study’s authors to speculate that “different consumption levels of the major specific fat types, rather than total fat intake itself, appeared to influence cognitive aging.” “When looking at changes in cognitive function, what…
A federal court in California has granted in part and denied in part the defendant’s motion to dismiss claims that its product labels, ads and Website representations for Muscle Milk® ready-to-drink beverages and snack bars violate state unfair competition and false advertising laws and the California Consumers Legal Remedies Act, and constitute fraud, negligent misrepresentation and unjust enrichment. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., decided April 11, 2012). While the court determined that the plaintiff has standing to pursue the putative class claims and that the claims are not preempted by federal law nor should be stayed under the primary jurisdiction doctrine, it found many of her claims insufficiently pleaded. According to the court, the only claim that survives the motion to dismiss alleges that the term “healthy fats” on the 14-ounce Muscle Milk® ready-to-drink label could constitute deceptive product labeling, because “[a] reasonable consumer would be likely…
