Wrigley Sales Co. scored a victory when a California federal court judge dismissed a putative class action alleging that the company’s “sugar free” claims were false and misleading.
Phyllis Gustavson claimed products such as Eclipse sugar-free gum in Polar ice flavor and Orbit sugar-free gum in Spearmint were misbranded. The products claimed to be “sugar free” on the front of the packaging and stated they contain “fewer calories” than sugared gum or candy on the back of the packaging.
The court found that the suit – which also challenged Wrigley’s labeling for failing to disclose that certain products are sweetened with nutritive and non nutritive sweeteners – was preempted by the Food, Drug, and Cosmetic Act as amended by the Nutrition Labeling and Education Act.
The applicable federal regulations for “sugar free” label statements, 21 C.F.R. § 101.60(c)(1), offer advertisers three choices of an additional statement to include on their product packaging: (1) “the food is labeled ‘low calorie’ or ‘reduced calorie’ in compliance with federal regulations; (2) the food ‘bears a relative claim of special dietary usefulness’ in compliance with federal regulations; or (3) the ‘sugar free’ claim ‘is immediately accompanied, each time it is used, by either the statement ‘not a reduced calorie food,’ ‘not a low calorie food,’ or ‘not for weight control.’”
Wrigley said that it complied with “a relative claim of special dietary usefulness” because its products make a “fewer calories” statement that the specific gum or mint contains at least 25 percent fewer calories of an appropriate reference food identified in immediate proximity to the claim with quantitative information.
For example, immediately below the “Nutrition Facts” box on the back of the Winterfrost flavor of Eclipse sugar-free gum, Wrigley included a statement that the product contains “35% fewer calories than sugared gum. Calorie content has been reduced from 8 to 5 calories per two piece serving.”
U.S. District Court Judge Lucy H. Koh agreed that Wrigley’s packaging complied with the federal regulations. “[T]he FDA does not require a relative claim of special dietary usefulness to appear separately from the comparative information that must accompany such a claim,” she wrote, citing commentary to a final rule entitled “Food Labeling: Nutrient Content Claims, General Principles, Petitions, Definition of Terms; Definitions of Nutrient Content Claims for the Fat, Fatty Acid, and Cholesterol Content of Foods; Food Standards; Requirements for Foods Named by Use of a Nutrient Content Claim and a Standardized Term; Technical Amendment.”
Gustavson’s argument that the fewer-calorie claims were not conspicuous enough failed, the court said, as the claims appeared on the gum’s “information panel.” Because the packaging for the products was small, “the information panel therefore is the back of the package,” the court said.
“In sum, because the court concludes that defendants’ fewer calorie claims comply with FDA regulations governing the use of relative claims of special dietary usefulness, the court finds that Gustavson is attempting to impose a labeling requirement that is ‘not identical to’ federal requirements,” Judge Koh concluded.
She also concluded that Gustavson’s claims under California’s unfair competition and false advertising laws were therefore expressly preempted, and she dismissed the suit with prejudice.
To read the dismissal order in Gustavson v. Wrigley Sales Co., click here.
Why it matters: The court’s dismissal of the suit with prejudice is a clear victory for Wrigley, which found refuge in the federal labeling standards.