Thirty Days to Amend|Ice Cream Claims

(CN) - A woman may amend claims that Weight Watchers lowballed the number of calories in a line of diet ice cream bars, a federal judge ruled.

Amy Burke filed a class action in Newark against Weight Watchers International, "the world's leading provider of weight management services," and Wells Enterprises, the nation's largest family-owned ice cream manufacturer.

Burke claimed she regularly buys two types of the companies' diet ice cream bars - the Ice Cream Candy Bar and the Giant Chocolate Fudge Bar.

"The actual number of calories of each Ice Cream Candy Bar product, as packaged and sold to the public, is significantly higher" than the 140 calories listed on the box, Burke claimed.

She said NBC's "Today" show revealed this when its investigation of "low-calorie" ice cream aired on Aug. 20, 2012.

Weight Watchers "did not refute the damning results of the testing performed on behalf of the Today Show," according to the complaint.

Burke claimed that independent, FDA-compliant laboratory tests showed that the calorie content of the candy bars is 20 percent to 36 percent greater than the label states.

The complaint also mentions the Divine Triple Chocolate and Dark Chocolate Dulce de Leche Bars, but asserts no claims about tests of these or other diet bar flavors.

Burke's four-count, amended complaint alleges breach of express and implied warranty, violation of the New Jersey Consumer Fraud Act and unjust enrichment.

The New York-based weight loss firm and the Le Mars, Iowa-based Blue Bunny ice cream-maker moved to dismiss the claims as preempted by the federal Food, Drug, and Cosmetic Act (FDCA) and for lack of standing, and to strike portions related to the "Today" show.

U.S. District Judge William Martini dismissed Burke's claims, with leave to amend.

"Burke's claims are preempted because she has failed to plead two separate things," Martini wrote. "First, she has not pled that she tested the Ice Cream Candy Bar using every one of the [FDCA's] 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 percent. Instead, Burke cites generally to laboratory tests performed 'in accordance to, and in compliance of, FDA guidelines, including 21 Code of Federal Regulations 101.9.' Burke's allegations are insufficient to allege a violation of the FDCA. This conclusion goes not just for the Ice Cream Candy Bar, but also for the all of the other diet bars, whose calorie content Burke apparently did not measure."

Though Burke seeks to bring class action claims for diet bars she did not actually purchase, "The basis for Burke's claims is the same with respect to all of the diet bars, the diet bars are closely related because they belong to the same product line, and the defendants are the same," Martini wrote, refusing to dismiss the claims for lack of standing.

But the allegations about the "Today" show are "potentially inflammatory, and confusing and collateral," the ruling states.

"The amended complaint omits to mention that at one point during the segment, a 'Today' show contributor said that it was 'completely legal' for Weight Watchers to represent one calorie content for its Ice Cream Candy Bar when the Ice Cream Candy Bar actually contained 16 percent more calories," Martini wrote, noting that if the motion to strike were not moot, the court would grant it.

Burke has 30 days to amend her claims a second time.

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