A federal judge has tentatively approved a settlement in which the makers of Muscle Milk will create a $5,275,000 million fund for consumers adversely affected by marketing of the products. The settlement, in which Cytosport Inc. denies any wrongdoing, will resolve a 2011 false advertising lawsuit filed against the company. The suit alleged that Cytosport misrepresented its Muscle Milk products as healthy and nutritious, despite 50 percent of the products’ caloric content coming from fats.
The settlement was agreed to in March when plaintiff Claire Delacruz and Cytosport decided to eschew further litigation in favor of the multi-million dollar fund, which will reimburse consumers who purchased Muscle Milk ready-to-drink products from July 18, 2007 to December 21, 2012 up to $30 for those with proof of purchase and up to $10 for those without sales receipts. As part of the settlement, Cytosport will remove the phrases “Healthy, Sustained Energy” from its products for a period of three years. The company will also remove “healthy fats” from its nutrition labels for three years, unless the products contain less than 0.5 grams of saturated fat per serving or an additional phrase that reads “See nutrition information for saturated fat content.”
The settlement is subject to final at a hearing set for May 15, 2014, however, it’s unlikely that Cytosport is out of woods when it comes to the nutritional claims and branding of its Muscle Milk drinks. The company, which was recently put up for auction, received a warning letter about its marketing practices from the U.S. Food and Drug Administration (F.D.A.) in July 2011. The F.D.A.’s most pressing concern was the very name “Muscle Milk” itself, specifically because the brand’s ready-to-drink products do not contain any actual milk. In the letter, the F.D.A. also took issue with Cytosport’s use of the word “healthy,” noting that Muscle Milk products exceeded the maximum fat content of products that can be labeled as such.