A California resident has filed a putative nationwide class action with a California subclass against a company that makes low-calorie frozen desserts that allegedly have as much as 68 percent more calories than touted on the product label. Freeman v. Arctic Zero, Inc., No. 12cv2279L BGS (U.S. Dist. Ct., S.D. Cal., filed September 18, 2012). Similar putative class claims filed by another California resident in August are summarized in Issue 451 of this Update.

According to plaintiff Brenda Freeman, “[c]onsumers do not receive the benefit of their bargain because the actual calorie content of the Frozen Desserts is up to 68 percent higher than Arctic Zero prominently represents on the front of the product packaging, on the nutritional label, and in Arctic Zero’s other marketing materials.” She cites testing on the company’s Chocolate Peanut Butter and Vanilla Maple products showing them to be higher in calories than the 150 calories per pint on package labels. She also quotes purported consumer comments posted on the company’s Website, expressing satisfaction with a dessert product containing so few calories.

Alleging violation of the Magnuson-Moss Warranty Act, breach of express warranty, unjust enrichment, and violations of California’s Consumers Legal Remedies Act, Unfair Competition Law and False Advertising Law, the plaintiff seeks damages, restitution and/or disgorgement, punitive damages, costs, interest, and attorney’s fees.