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Federal court shoots down slack-filled container allegations against Muscle Milk

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Mary Ellen Shoup

By Mary Ellen Shoup+

13-Dec-2016
Last updated on 14-Dec-2016 at 10:11 GMT2016-12-14T10:11:23Z

Muscle Milk is no longer facing allegations from a plaintiff and consumer that it has been deceptively and intentionally under filling its protein powder product containers.
Muscle Milk is no longer facing allegations from a plaintiff and consumer that it has been deceptively and intentionally under filling its protein powder product containers.

Muscle Milk has dismissed allegations in a New York federal court that it was intentionally underfilling its protein powder products by 30% in non-transparent containers.

Originally filed by Orlando Bautista in November 2015, then amended twice, the allegations were dismissed Dec. 12, 2016.

Muscle Milk had an approximately 20% share of the nearly $16bn protein powder market in 2014, according to FoodNavigator-USA, and is prevalent in major retailers such as GNC and CVS.   

The under-filled or “slack-filled” containers are defined by the court document as the non-functional difference between the actual capacity of the container and the volume of the product contained inside.

Plaintiff Bautista alleged that CytoSport, the manufacturer of Muscle Milk, “made false representations, concealments, and non-disclosures” of the true quantity of protein powder products including Muscle Milk Protein Powder, Powder Light, Powder 100 Calories, Powder Naturals, Powder Collegiate, Powder Performance Whey, Powder Pro Series 50, Powder Pro Series Amino, and Powder Pro Series Creatine.

Consumers, in reliance on the size of the containers, paid a premium price for the protein powder products, which they would not have purchased had they known that the containers were substantially empty, the plaintiff stated in the court document.

The price for Muscle Milk protein powder products range between $19 and $40 on Amazon.

In other words, consumers have been led to believe that Muscle Milk protein powder are substantially full because they cannot see inside the container at the point of purchase.

“Defendant CytoSport intentionally incorporated non-functional slackfill in its packaging of the Protein Powder Products to mislead customers, including plaintiff and the class members,” the plaintiff stated in the court document.

Conclusions are not enough, judge finds

In its conclusion, the court found that the proposed class allegations against Muscle Milk were not adequately support by facts, and moved to dismiss all the slack-fill claims made by the plaintiff.

“Defendant argues (although without citing any of the case law on point) that plaintiff has failed to allege, beyond making bald assertions, that the alleged slack fill is nonfunctional and therefore misleading,” the court ruling stated.

According to the judge, the plaintiff must provide more than “labels and conclusions” and that a “formulaic recitation of the elements of a cause of action will not do.”

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