Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—D.N.J.: New Jersey consumer fraud claims about calories in Weight Watchers ice cream bars preempted by FDCA, (Oct 18, 2013)

By Tobias J. Gillett, J.D., LL.M.

The putative class action claims of a purchaser of Weight Watchers diet ice cream bars that the labels underrepresented the number of calories in the product, in violation of the New Jersey Consumer Fraud Act (NJCFA), were preempted by the federal Food, Drug, and Cosmetic Act, the federal district court in Newark has ruled (Burke v. Weight Watchers International, Inc., October 15, 2013, Martini, W.).

The purchaser alleged she purchased Weight Watchers Ice Cream Candy Bar and GIANT Chocolate Fudge Bar diet ice cream bars produced by Wells Enterprises, Inc., under a contract with Weight Watchers International, Inc. The purchaser alleged that independent laboratory tests performed “in accordance to, and in compliance of, FDA guidelines” revealed that the Ice Cream Candy Bars contained 20-36 percent more calories than their labels indicated. The complaint also described a Today Show segment concerning an investigation into low-calorie ice cream bars, claiming that Weight Watchers “did not refute the damning results of the testing performed on behalf of the Today Show.” However, the court noted that the complaint failed “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% more calories.”

The purchaser asserted claims for violation of the NJCFA, breach of express and implied warranty, and unjust enrichment against Wells and Weight Watchers. The defendants moved to dismiss, and to strike the allegations about the Today Show segment.

Standing. The court denied the defendants’ motion under Federal Rule of Civil Procedure 12(b)(1) to dismiss the purchasers’ claims regarding diet ice cream bars that she did not purchase. The court noted a split in authority in the District of New Jersey between courts that held that class action plaintiffs lack standing with respect to products they did not purchase or use, and other courts that held the issue should be decided at the class certification stage rather than on a motion to dismiss. Here, the court chose to follow the latter approach, observing that the purchaser’s claims were the same with respect to all of the diet bars, the bars all came from the same product line, and the defendants on each claim were the same.

Preemption. However, the court dismissed the purchaser’s claims without prejudice under Federal Rule of Civil Procedure 12(b)(6), finding that they were preempted by the federal Food, Drug, and Cosmetic Act. The FDCA deemed a product “misbranded unless its label or labeling bears nutrition information that provides the total number of calories … in each serving size or other unit of measure of the food.” The FDA’s implementing regulations permitted the total number of calories to be calculated by any of five methods, while a safe harbor provision allowed the total number of calories measured by those methods to vary as much as 20 percent from the amount listed on a label.

State law would be preempted to the extent it “directly or indirectly establishes any requirement for nutrition labeling of food that is not identical to the requirement” in the FDCA. Here, the purchaser’s claims were preempted both because she failed to plead that she tested the Ice Cream Candy Bar using all of the five methods, and because she did not plead that every one of the tests’ results had shown that the amount of calories in the diet bars exceed the amounts listed on their labels by more than 20 percent. Since the purchaser’s claims were insufficient to allege a violation of the FDCA, her claims were preempted.

Motion to strike. The court denied as moot the defendants’ motion to strike the allegations regarding the Today Show segment. However, the court noted that the purchaser had failed to mention “the segment’s conclusion that Weight Watcher’s label is ‘completely legal’ when it comes to representations about calorie count,” and therefore found “that the allegations about the segment are potentially inflammatory, and confusing and collateral.” Thus, the court would have granted the motion if it were not moot.

The case is Civ. No. 2:12-06742 (WJM).

Attorneys: James E. Cecchi (Carella Byrne Cecchi Olstein Brody & Agnello, P.C) and Mark S. Reich (Robbins Geller Rudman & Dowd LLP) for Amy Burke. Michael R. McDonald (Gibbons, PC) for Weight Watchers International, Inc. and Wells Enterprises, Inc.

Companies: Weight Watchers International, Inc.; Wells Enterprises, Inc.

Cases: StateUnfairTradePractices NewJerseyNews