Weight Watchers Ice Cream Bars Class Action Lawsuit Dismissed

Weight Watchers Ice Cream Bars Class Action Lawsuit Dismissed

By Anne Bucher

In an opinion filed yesterday, a New Jersey federal judge dismissed a putative class action lawsuit accusing Weight Watchers International Inc. of deceptively labeling the calorie counts on some of its diet foods, finding that the plaintiffs had not rigorously tested the calorie counts of the foods at issue.

U.S. District Judge William J. Martini rejected the plaintiffs’ tests that showed Weight Watchers’ diet ice cream bars contained as many as 20 percent more calories that indicated on the product label. The judge found that named plaintiff Amy Burke did not test the ice cream bars under the five methods allowed by the federal Food, Drug and Cosmetic Act (FDCA) for calorie counts, and therefore could not prove that the products fell outside the 20 percent “safe harbor” allowance in the five tests.

 “Burke’s claims are preempted because she has failed to plead two separate things. First, she has not pled that she tested the Ice Cream Candy Bar using every one of the Five Methods. Second, she has not pled that every one of the tests results exceeds the calorie value on the Ice Cream Candy Bar label by more than 20%. Instead, Burke cites generally to laboratory tests performed ‘in accordance to, and in compliance of, FDA (U.S. Food & Drug Administration) guidelines,” Judge Martini said in his October 17 decision. “Burke’s allegations are insufficient to allege a violation of the FDCA.” Burke has 30 days to file an amended class action lawsuit.

Burke filed the Weight Watchers ice cream bars class action lawsuit in October 2012 after watching a segment on the “Today Show” investigating low-calorie ice creams. That segment indicated that some of Weight Watchers’ products contained 16 percent more calories than the number listed on the label. According to the class action lawsuit, Burke sent samples of the Weight Watchers’ products to “one of the nation’s largest and most respected food testing firms,” which found that the ice cream had as many as 36 percent more calories than listed.

Judge Martini rejected Weight Watchers’ argument that Burke did not have standing to file the class action lawsuit against the entire diet ice cream bar line because she only purchased two types of ice cream bars. The judge found that the basis of Burke’s claims was applicable to the entire line of diet products. However, Judge Martini agreed with Weight Watchers’ concerns that part of the class action lawsuit was prejudicial because it did not mention that the “Today Show” concluded that the products were legal under the “safe harbor” provision of the FDCA.

“The court finds that the allegations about the segment are potentially inflammatory, and confusing and collateral,” he wrote.

Burke is represented by Caroline Bartlett and James E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello PC and Mark S. Reich of Robbins Geller Rudman & Dowd LLP.

The Weight Watchers Ice Cream Bars Class Action Lawsuit is Burke v. Weight Watchers International Inc., et al., Case No. 2:12-cv-06742, in the U.S. District Court for the District of New Jersey.

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