Andrew Adam Newman
Cytosport, which makes Muscle Milk, a fortified drink popular with athletes, is getting a workout itself these days, as Nestle USA claims the product is deceptively named and marketed because it does not actually contain milk.
Nestle, which makes milk-based beverages and powdered mixes under brands such as Nesquik and Carnation, filed a complaint with the National Advertising Division of the Council of Better Business Bureaus. Because CytoSport declined to participate, the NAD in May referred the matter to the Federal Trade Commission and the Food and Drug Administration.
On June 9, Nestle USA filed a petition with the US Patent and Trademark Office to revoke Muscle Milk?s trademark for being ?deceptively misdescriptive.? In response to questions from The New York Times, representatives for both Nestle and CytoSport issued statements.
?Nestle USA believes in the nutritional benefits of milk,? the company stated. ?Consumers looking at Muscle Milk, marketed as a ?Nutritional Shake,? are likely to be misled into believing they are purchasing a flavoured or supplemented milk product, when, in fact, they are purchasing a water-based product that contains no milk.?
CytoSport countered that it had never ?marketed Muscle Milk products as flavoured dairy milk,? adding that, rather, it is modeled after another milk entirely. ?CytoSport?s marketing and advertising materials have made it clear? over the more than 10 years that Muscle Milk has been sold?that Muscle Milk products are high-protein nutrition products designed after one of nature?s most balanced foods: Human mother?s milk.? As the world?s largest food company, with more than $100 billion in sales in 2008, the Switzerland-based Nestle is hardly picking on someone its own size when it challenges CytoSport, which has about $200 million in annual revenue, according to a spokesperson.
First available only as a powder mix, Muscle Milk has grown significantly since 2004, when it introduced a ready-to-drink version that shares grocer?s dairy cases with flavored milk.
