Too Many Calories in Your Candy? That's a Lawsuit!

Legal threats over food marketing appear to be on the rise. But who really benefits?



Last week, the Chicago Tribune reported that an area man had sued eminent Chicago-based candy maker Wrigley, alleging the packaging of the company's Starburst candies deceived him.

Plaintiff Artur Tyksinski alleges the front of the company's Starburst package he allegedly purchased claims the candy contains ten fewer calories per piece (130) than the FDA-mandated "Nutrition Facts" panel on the back of the package says it actually contains (140).

"Artur Tyksinski never would have bought the corn syrup- and sugar-sweetened Gummies Sours candy at a Chicago-area drugstore earlier this year had he known it contained 8 percent more calories," the Tribune reports.

The suit, which claims Wrigley engaged in misleading marketing and consumer fraud, seeks "actual damages, treble damages, statutory damages, punitive damages, attorneys' fees and costs, and injunctive relief." It also seeks class-action status, meaning that others who'd shelled out $2.49 for the same Starburst would also join him in the lawsuit unless they were to opt out.

The lawsuit was filed in state court. That may be a smart tactical decision.

"Federal judges in Chicago recently have been taking a skeptical view of class-action lawsuits over allegedly misleading food claims," the Tribune piece notes.

As my conflict of laws professor always said, rule number one for litigants is to sue where you've got the best chance of winning.

One of those federal lawsuits that faced quite a "skeptical view" recently in federal court in Chicago concerns sandwich maker Subway, in a suit I first wrote about in a 2013 column. In that lawsuit, Subway faced claims the chain's signature "footlong" subs were not twelve-inches long.

"That may seem like hairsplitting—especially given the fact that dictionaries define the word 'footlong' not as 'exactly 12.00 inches' but, rather, as 'approximately one foot in length,'" I wrote at the time. Nevertheless, Subway reached a settlement with the plaintiffs in 2016. But the settlement was thrown out last month by the Seventh Circuit Court of Appeals in Chicago, which determined the agreement provided a windfall to the plaintiffs' lawyers but little if any value to the plaintiffs themselves.

The settlement was dismissed thanks to the intervention of Ted Frank of the Competitive Enterprise Institute's Center for Class Action Fairness. Frank filed an objection "to the settlement on grounds that while the lawyers were 'handsomely compensated' the class received 'negligible to no relief.'"

That's promising. So what are the prospects for the Starburst lawsuit? Maybe it's true, as the suit alleges, that the front of the Starburst package claims each chewable candy contains ten fewer calories than it does in reality. But it might also be true that the nutrition facts panel on the back of the package is wrong, and that the 130-calorie claim is in fact accurate.

In either case, if the numbers don't match up, then Wrigley's blundered by failing to check the company's Starburst labels closely. But is that the stuff of a successful class-action lawsuit?

One of the key elements of any damages claim in a suit like this is that a plaintiff must show they've been personally injured ("injury in fact"). In other words, a person claiming a product's marketing deceived them must show they were damaged in some way by the misleading claim.

I doubt the Starburst lawsuit can demonstrate injury in fact. For example, the suit alleges the entire Starburst package in question contains a mere sixty more calories more than the plaintiff expected. That's fewer than half of an additional Starburst's worth of calories.

Even if a court buys that argument, will a class-action suit really benefit those who bought Starburst expecting eight-percent fewer calories?

"The class action process permits lawyers to rent-seek substantial sums without providing their clients any benefit," CEI's Frank told me this week. "Unfortunately, the Seventh Circuit Subway decision policing such abuse is too rare. The same week a Tenth Circuit court signed off on an eight-digit fee on a settlement of a lawsuit whose theory of fraud was that warm gallons of gasoline have fewer molecules than colder gallons, even though the class will be made worse off."

Food lawsuits like those involving Subway and Wrigley appear to be growing in frequency. Last month, for example, I wrote about another class-action lawsuit, this one targeting Poland Spring Water. That suit claims the water, marketed by Nestlé, is not actually drawn from the specific spring named "Poland Spring" but is, instead, pulled from other sources, including other springs.

"When a seller chooses to make claims about its [food] then they open themselves up both to government scrutiny and lawsuits if those claims are of dubious validity," I wrote my Poland Springs column. I still believe that. But I'll also continue to cheer courts when they dismiss suits and settlements that don't have merit and that benefit no one save the lawyers who file them.