Reason.com

Free Minds & Free Markets

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?

StarburstWrigleyLast 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.

Photo Credit: Wrigley

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • DajjaI||

    OH MY GOD REASON ENOUGH WITH THE TRUMP BASHING

  • C. S. P. Schofield||

    Said what?

  • Fist of Etiquette||

    So did the lawyers find someone willing to put his name on this lawsuit or did Tyksinski actually initiate it?

  • Adans smith||

    I think you know the answer. First kill all the [class action ] lawyers.

  • Libertarian||

    I want to see a pic of the plaintiff. I just know he looks like Michael Moore.

  • Libertarian||

    "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,"

    It's time to go back to the early 80's and its generic packaging fad.

    http://historysdumpster.blogsp.....f-80s.html

  • Rat on a train||

  • Eric Bana||

    My god I want some Starbursts, regardless of their calorie count. Not the originals one though. Tropical sounds might succulent right now. Mmmmmmm...

  • Paul Sand||

    To quibble, shouldn't the headline on this article be "Too Few Calories..." instead of "Too Many Calories..."?

  • DJF||

    Depends on whether you are reading the front or back of the packaging.

  • CatoTheChipper||

    " ten fewer calories per piece (130) than the FDA-mandated "Nutrition Facts" panel on the back of the package says it actually contains (140)."

    This is certainly incorrect.

    I'm sure that the calorie count is per serving NOT per piece.

  • Michael P||

    My opinion of Baylen Linnekin as a "food expert" went way down due to the repeated references of a single piece of Starburst candy having 130 or 140 calories. There is no way to fit that many calories in a piece of candy that size, and even a casual consumer should know better. A food expert should, a fortiori, be much more aware and careful.

    The Chicago Tribune's article makes it clear that the calorie count is per serving, which is (judging from places on the Internet that say 20 calories per piece or 160 calories per 8-piece serving) 7 pieces for the package Tyksinski bought.
    Given that calories are regularly rounded to the nearest 10 calories, apparently due to FDA regulations, I bet that this lawsuit will go nowhere. Doubly so if he didn't actually count how many pieces were in his package, because I'd bet that if you bought ten of those packages, you would not get exactly 420 pieces (or whatever ten times the nominal count is) -- and that kind of variation is a substantial fraction of his alleged confusion.

  • Libertarian||

    We need to ingest calories in order to survive. Wouldn't getting too few calories be a reason to sue, rather than getting too many?

  • buybuydandavis||

    The class action process permits lawyers to rent-seek substantial sums without providing their clients any benefit,

    Legal profession acts to benefit lawyers.
    Dog bites man.

  • Bubba Jones||

    According to the nutrition facts I googled it is 160 calories per 8 piece serving.

    Perhaps he bought a 7 piece pack or something odd.

  • Bra Ket||

    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

    shocked face

  • Bra Ket||

    "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,"


    hmm...

    ...the FDA-mandated "Nutrition Facts" panel on the back of the package ...

    Not all of them are "choosing" to make claims, from the sounds of it.

  • Telcontar the Wanderer||

    You know those suicide prevention websites they post links to at the bottom of any article about suicide statistics or depression?

    Well, this article is the opposite of those.

  • DajjaI||

    Dear America, We Invented All the Worst Candy. Sorry. Love, Boston

    Now here's a class action I could get behind.

  • Intelligent Mr Toad||

    If you like Starburst, be sure to try Starburst jelly-beans. More intense flavor, and, more different flavors, including grape.

    I get them here (remove the spaces)

    http://www. farmandfleet. com/products /225828-starburst -jelly-beans.html

  • maddarter||

    Isn't this the libertarian way -- with lawsuits and private enforcement? Imagine the lawsuits we could have if only the government would repeal the regulations of what cheese is, or how much filler we can have in beef products, or the many others that cover such definitions.

    Maybe in response to this, the government can draft a regulation that says that calories need to be a good faith approximation, in which case an 8% error would likely not be considered misleading. Of course, this would add to the Federal Register page count.

  • macsnafu||

    "Isn't this the libertarian way -- with lawsuits and private enforcement?"

    Sort of. But when you have to go to a government court, is the result really *private* enforcement, or just another branch of government enforcement? I think it would be more libertarian to do away with the government's authoritarian legal system and switch to something more like a common law or customary legal system. We have that to some degree with private arbitration and mediation, but it's still rather limited in legal scope.

  • Bra Ket||

    Considering the over-representation of trial lawyers among those writing the laws in the first place, I'll take that risk.

    Anyway ask ten people here what is the preferred libertarian way to resolve this problem and you'll probably get more than ten different answers. One approach would be to allow competing justice systems.

  • Earth Skeptic||

    Oh for fucks sake! I guess I expect regular people to be dimwits, but could an educated respectable member of the bar be such a douche?

    Wait, never mind.

  • TGoodchild||

    "But who really benefits?"

    Um, the lawyers! That's the point, right?

  • Paul B||

    There's no possible way starburst has 130 calories per piece. How could a so called expert write that??

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online