Candy Maker Accused of Fudging Amounts in Packages (subscription to Law360 required)

  • A putative class action complaint was filed in the U.S. District Court for the Northern District of Illinois on March 18, 2021 against Kilwins Quality Confections, a Michigan-based company with internet sales and franchises in 25 states that make various sweets on-site.  The named plaintiff alleges that a variety of candy,  was mislabeled under state consumer protection laws and food labeling statutes because it contained fewer servings and a higher caloric content than declared.
  • The complaint seeks more than $5 million in compensation for overpayment by consumers over a 5-year period before Kilwins purportedly corrected the alleged labeling violations.  As one example, the plaintiff claims to have paid $16.99 for a jar of Sea-Salt Caramel Topping bearing a label which stated that the jar contained 20 servings of 2-TBL and 110 calories per serving, but actually contained only 16 servings with 140 calories per serving.
  • The claims at issue appear to involve gross misstatements  of the net weight and caloric content on products in a niche market and, therefore, may not portend a new area of scrutiny for class action lawsuits.  Moreover, net weight lawsuits centered on violations of state laws sometimes raise complex preemption issues where different results would follow under a less complicated sampling plan under FDA’s Compliance Policy Guide which calls for selecting a sample of 48 units, and considers the sample to be in compliance if the mean of the sample is within 1% of the declared contents.