Controversy
A June 2010 investigation by Consumer Reports, a US consumer advocacy magazine, found that two of Cytosport's Muscle Milk products contained levels of heavy metals near or exceeding levels proposed by the United States Pharmacopeia (USP). Muscle Milk's Chocolate powder had four heavy metals — cadmium, lead, arsenic, and mercury — and three of these metals were found to be at the highest levels of all the health drinks tested. Average cadmium levels of 5.6 μg in three daily servings exceeded the USP limit of 5 μg per day, and the average lead level of 13.5 μg also topped the USP limit of 10 μg per day. The average arsenic level of 12.2 μg was near the USP limit of 15 μg per day. Muscle Milk's Vanilla Crème powder had 12.2 μg of lead in three daily servings, exceeding the lead limits, and 11.2 μg of arsenic.[6] In response, CytoSport said, "Importantly, the tests underscored the fact that Muscle Milk Chocolate liquid shakes, by far and away our company's most popular consumer form of Muscle Milk, did not exceed the proposed maximum levels of any heavy metals tested, even when used three times per day."[7][8] CytoSport's founder, Greg Pickett, also indicated that NSF International released a conclusion that its own test results 'do not reflect the concentrations stated in the Consumer Reports article.'"[7] In turn, Consumer Reports provided their rebuttal, defending their statements.[9]
On June 8, 2009, it was reported that The National Advertising Division (NAD) of the Council of Better Business Bureaus (BBB) was referring advertising claims made by CytoSport Beverage Co. for its Muscle Milk product to the U.S. Federal Trade Commission and U.S. Food and Drug Administration for review. Under its National Advertising Review Council terms, NAD had asked Cytosport to substantiate certain claims following a challenge to its advertising filed by Nestle USA. Nestle said the marketing of Muscle Milk was false and misleading, alleging consumers would be misled into thinking it is a supplemented milk product instead of a dietary supplement. CytoSport said its product claims are truthful and non-misleading, and that the product name is a non-deceptive registered trademark; it declined to participate in the NAD review, stating the review was unnecessary and inappropriate.[10]
On May 6, 2009, in Sacramento, California, a federal court issued a preliminary injunction requiring Vital Pharmaceuticals, Inc. (VPX) to immediately remove Muscle Power from the marketplace, after concluding that the product infringes on CytoSport's trademark rights of Muscle Milk. This was prompted after CytoSport filed a lawsuit against VPX, stating that Muscle Power's packaging, or "trade dress", was deceptively similar to Muscle Milk's packaging. The court held that "VPX has chosen an identical font, in an identical color, on an identically shaped package, and placed the mark on the package in an identical location."[11]
