Got Milk?

Government regulators have threatened to crack down on a popular sports drink they say is mislabeled as "milk," a move welcomed by the dairy industry, which has long objected to the name soy milk and others like it.

Recently, the U.S. Food and Drug Administration took the unusual step of sending a formal warning letter to the makers of Muscle Milk, a fortified drink that athletes consume after intense workouts.

The FDA says the name "Muscle Milk" is misleading, even though the product's label says it "contains no milk."

An allergen statement on the package says "this product contains ingredients derived from milk," including whey.

But the disclaimer is in smaller type and is less prominently displayed than the words "Muscle Milk."

The June 29 warning letter gave CytoSport Inc., the makers of Muscle Milk, 15 days to address numerous mislabeling issues with specific corrective actions. Otherwise, the company could face product seizures or legal action.

CytoSport did not return a Journal Sentinel call. But on its website the company says it is "proactively and openly addressing the FDA's labeling concerns."

"Concerns like this have been raised before when the dairy lobby complained that other industries or products like Soy Milk, Almond Milk, Coconut Milk and Rice Milk are using the name 'milk' in connection with a product other than fluid dairy milk, all of which appeal to lactose intolerant consumers just as Muscle Milk does," CytoSport wrote.

The FDA would not answer questions about its Muscle Milk investigation, but a formal warning letter is considered a serious matter.


No barnyard connections

At the heart of the dairy industry, Wisconsin has a stake in the fight over the name "milk."

The industry believes that products shouldn't be called "milk" unless they come from a dairy cow.

"Something that calls itself Muscle Milk and in very fine print says it contains no milk, is playing very fast and loose with the rules. That is the basic concern," Galen said.

"We are seeing all these iterations of traditional dairy products that have no connection with a barnyard at all. That's why we have really renewed our push to get the FDA to do something," he added.

It annoys dairy producers to see something like soy milk sold alongside cow's milk in the grocery store.

Even "hemp milk," made from hemp plants, has a carton similar to regular milk.

"We have told the FDA that if something is going to be sold in the grocer's dairy case, it needs to be properly labeled," Galen said. "A lot of people don't have time to ponder the ingredient labels."

Sales of soy-based foods have exploded in recent years to become a $1 billion industry, according to the Soyfoods Association of North America.

Consumers aren't mistakenly buying soy milk or other dairy food substitutes, if they really wanted cow's milk, said Nancy Chapman, Soyfoods Association executive director.

"The most important thing to recognize is the American public is not confused with the fact that soy milk does not have dairy in it," she said. "Soy milk has been around for a very long time. People select it very specifically as an alternative to dairy products."

Turning the tables

CytoSport has never claimed that Muscle Milk is cow's milk, but the company says it modeled the sports drink after human mother's milk. That's because it contains similar "fast burning fats," according to the company.

While defending the name Muscle Milk, Cyto-Sport has attacked others with similar names.

In 2009 it filed a trademark infringement lawsuit against "Defense Nutrition," a California firm whose line of health supplements included a product called "Warrior Milk."

CytoSport has filed lawsuits when "competitors have looked for opportunities to unfairly benefit from Muscle Milk's recognition," the company said in a statement.

It bullied Defense Nutrition, said company owner Ori Hofmekler, author of nutrition books including "The Warrior Diet."

"They sued me, saying I had no right to use the name 'milk' because they were recognized for it, and that our product resembled theirs," Hofmekler said.

"I never agreed with this, but at a certain point we agreed to settle because we couldn't afford to fight them," he added.

Warrior Milk is now called Warrior Whey because it contains whey, a milk product.

Now that the FDA is pursuing CytoSport for its Muscle Milk label, Hofmekler said, "the bully is getting what he deserves."

Source:JS Online Journal 7/31/2011