Mars Chocolate Class Action Lawsuit Moves Forward

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On Tuesday, U.S. District Judge Lucy H. Koh rejected Mars Inc.’s motion to dismiss a class action lawsuit alleging that the packaging on the company’s chocolate products contain misleading information about nutrition and caloric content.

Lead plaintiff, California resident Phyllis Gustavson, alleges in the Mars class action lawsuit that packaging on various Mars chocolate products led her to believe that those products, including Dove Bar – Dark Chocolate, M&M Chocolate Candy, Twix Cookie Bar, Dove Bar – Milk Chocolate, and Snickers Bar, met nutritional requirements with regard to flavanols, and the products could be a part of a healthy diet.

The Mars class action lawsuit alleges that the packaging on those products and other similar products contain “unlawful flavanol nutrient content claims on the packages,” “an unlawful calorie related nutrient content claim,” and “fail[ed] to label ingredients by their common name.”

The class action lawsuit further alleges that Mars’ chocolate packaging violates Food and Drug Administration Regulations, California Consumer Laws, and the Sherman Law.  Gustavson argues that Mars’ labeling is a “strategy” designed to help increase sales that is “dependent on repositioning their chocolate candy as healthy, nutritious and lower calorie.”

Mars filed a motion to dismiss the chocolate class action lawsuit, arguing that the issues in the case are preempted by federal Food and Drug Administration regulations and “front-of-pack calorie-related labeling is an issue of first impression that is currently under active consideration by the FDA.”

On June 10, Judge Koh rejected those arguments and found that “the FDA’s regulatory process with regard to front-of-package calorie statements is not sufficiently concrete or advanced as to warrant dismissal of plaintiff’s calorie claims.”

With regard to the flavanol claims, Judge Koh pointed out that “[w]hile Defendants argue that the statement ‘natural source of cocoa flavanols’ simply notifies consumers that flavanols are naturally present in the chocolate, … [a]t the very least, stating that a food product is a ‘source’ of a given nutrient indicates that the nutrient is present at a level higher than zero, and the fact that the manufacturer chooses to note that its product is a ‘source’ of that nutrient arguably implies that the nutrient is present in substantial quantities.”

“The published record of the FDA’s reasoning on this point supports an inference that the agency considered the word ‘source’ alone to characterize the level of nutrients in a product,” she continued.

Judge Koh similarly rejected Mars’ argument that Gustavson’s calorie claims should be dismissed, stating “[t]here is nothing to prevent Defendants from: (1) making a calorie statement on the front of their product packages that ‘does not in any way implicitly characterize the level of the nutrient in the food and [] is not false or misleading in any respect,” and “(2) [an] accompanying that statement with a disclosure directing consumers to consult the full nutrition information on the back of the packages for information regarding other nutrients.”

The plaintiff is represented by Ben F. Pierce Gore of Pratt & Associates and J. Price Coleman of Coleman Law Firm.

The Mars Chocolate Class Action Lawsuit  is Phyllis Gustavson v. Mars Inc., et al., Case No. 5:13-cv-04537, in the United States District Court for the Northern District of California, San Jose Division.