A federal court has dismissed without prejudice the first amended complaint filed in a putative class action alleging that Weight Watchers International misleads consumers by misrepresenting the number of calories in its line of diet ice cream bars. Burke v. Weight Watchers Int’l, Inc., No. 12-6742 (U.S. Dist. Ct., D.N.J., decided October 17, 2013). While the court held that it was premature to decide whether the plaintiff had standing to bring claims as to diet bars she did not purchase, persuaded by other courts that this was more properly decided at the class certification stage, it agreed with the defendants that the state law-based claims were preempted.  

The Food and Drug Administration has set forth the five methods that can be used to calculate the total number of calories in a food product labeled with that information. In the court’s view, “Burke’s claims are preempted because she has failed to plead two separate things. First, she has not pled that she tested the Ice Cream Candy Bar using every one of the 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%. Instead, Burke cites generally to laboratory tests performed ‘in accordance to, and in compliance of, FDA guidelines, including 21 C.F.R. 101.9.’ Burke’s allegations are insufficient to allege a violation of the FDCA [Food, Drug, and Cosmetic Act]. This conclusion goes not just for the Ice Cream Candy bar, but also for all of the other Diet Bars, whose calorie content Burke apparently did not measure.”  

The court refused to strike a segment of the “Today Show,” which apparently reported that an investigation showed that one Weight Watchers Ice Cream Candy Bar contained more calories than listed on its label. According to the court, the issue was moot, but it noted its inclination to strike it if the plaintiff chose to file a second amended complaint, on the ground that the allegations about the segment “are potentially inflammatory, and confusing and collateral.”