Labeling Claims Against Mars Chocolates Advance

     (CN) - Mars must face claims that it makes misleading claims about the calories and nutrient content of its candy, including M&Ms and Dove bars, a federal judge ruled.
     Phyllis Gustavson hopes to represent a class with misbranding claims against Mars Inc. and Mars Chocolate North America LLC.
     The complaint takes aim at the labels of five Mars products - M&Ms, Twix, dark chocolate Dove, milk chocolate Dove and Snickers - and says Gustavson has spent more than $25 on these products since 2008.
     Regarding nutrient content, Gustavson says the packaging for a 3.3 ounce dark chocolate Dove bar includes statements that the chocolate bar is a "natural source of cocoa flavanols" and that the company's "CocoaPro" process "helps retain much of the naturally occurring cocoa flavanols" in cocoa beans.
     But Gustavson says federal regulations state that a nutrient-content claim may only use particular terms defined in FDA regulations. The term "source" is not among these defined terms unless preceded by the modifier "good," according to the complaint.
     Companies may also not make content claims unless the food product contains some fixed percentage of the established daily value for the nutrient in question, the complaint alleges. Gustavson says the Dove chocolate bar cannot possibly contain adequate flavanols to meet these requirements because the FDA has not established a recommended daily value for flavanols.
     The claims about how Mars represents the calories in its products are similar. Gustavson says the packaging label is deceptive because the statements are not accompanied by the disclosure, mandated by the Food and Drug Administration, that directs consumers to consult the full nutrition information panel located on the back of the package for further information regarding the levels of fat and saturated fat contained in the products.
     Though the statements refer to a "daily value" for calories, Gustavson says the FDA has not established a daily value for calories. Even if a daily value for calories did exist, the percentage statements Mars makes would allegedly still be misleading because recent U.S. Dietary Guidelines recommend that individuals strictly limit the amount of calories they consume in the form of sugar and fat, both of which are present at high levels in Mars' products.
     The class claims Mars violated California's Unfair Competition Law, its False Advertising Law and the Consumers Legal Remedies Act, and U.S. District Judge Lucy Koh in San Jose, Calif., refused to dismiss any part of the complaint Tuesday.
     In its motion, Mars had claimed that the Federal Food, Drug and Cosmetic Act pre-empts the claims regarding flavanol and calorie content. It also said that the calorie claims implicate technical and policy questions that are under active consideration by the FDA and thus are committed to the primary jurisdiction of the FDA.
     Gustavson countered that she seeks to enforce only what FDA and the Nutritional Labeling and Education Act of 1990 requires.
     In refusing to dismiss, Judge Koh agreed that the claims "do not seek to impose requirements beyond what federal law requires.'
     Mars had also argued that its statement "natural source of cocoa" only means that cocoa is naturally present in the chocolate, without characterizing the level of the flavanol.
     But Koh agreed with Gustavson that the word "source" did imply that the nutrient was present at a percentage higher than zero.
     "At 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," Koh wrote. "The final [FDA] regulation includes only 'good source' as a defined term, the FDA explained, because without the modifier 'good,' the word 'source' would 'not enable the consumer to conclude that the level of nutrient present is less than 'high.' This reasoning indicates that the FDA was concerned that 'source of' claims would suggest a certain level of nutrients to consumers."
     Though Mars said the FDA is actively considering front-of-pack calorie-related labeling, Koh said this does not present a jurisdictional issue.
     That process "is not sufficiently concrete or advanced as to warrant dismissal of plaintiff's calorie claims," the 18-page ruling states.
     Gustavson had originally brought her claims against Mars in a 2012 action against Wrigley, and Mars pointed out that the court had dismissed a claim regarding serving size in the Wrigley case based on the FDA's active consideration of the issue.
     But Koh said "closer examination of the FDA materials cited by defendants reveals that the FDA's plans for regulating front-of-package calorie statements in a manner that would affect the outcome of this case are far less apparent than they were in the Wrigley case."
     "The FDA's expressions of intent to regulate calorie statements similar to those at issue in this case have simply been too vague and tentative for the court to conclude, as it did in the Wrigley case, that it was prudent not to interfere with an active and ongoing regulatory process," she added.
     Mars had not challenged a third prong of Gustavson's complaint, which accuses Mars of failing to identify the ingredient "polyglycerol polyricinoleic acid" by its common name.