SAN FRANCISCO (Legal Newsline) - The amount of titanium dioxide in Skittles is legal under Food and Drug Administration regulations, the candy's maker is pointing out as it fights a class action lawsuit.
The lawsuit, filed in July in California federal court by plaintiff Jenile Thames, says Mars, Inc., has failed on its promise to phase out titanium dioxide, which is used for artificial color. It cites a 2016 press release from the company.
"Plaintiff alleges that TiO2 should be removed from SKITTLES® products altogether because he and others disagree with FDA’s conclusion that TiO2 is safe," a Sept. 30 motion to dismiss says.
"He alleges that the products are unsafe but does not allege that he or anyone else has actually suffered any physical injury from consuming the product. He also does not allege that he or anyone else faces a substantial risk of future adverse health consequences.
"He does not (and cannot) allege that the concentration of TiO2 in SKITTLES® products exceeds FDA’s authorized threshold, and he does not identify any comparable product he would have purchased instead that he contends is cheaper or safer."
Mars also says it complies with legal requirements to declare titanium dioxide on Skittles labels.
The press release at issue said Mars would eliminate artificial colors in its products in "about five years." In 2021, Mars said it would prioritize removal of them in Europe only.
"Perhaps to avoid dooming class certification, Plaintiff does not allege he suffered any physical injury from consuming Skittles," the motion says. "His generalized allegationis about health risks or studies cannot substitute for the injury requirement."
Following its filing, the case spawned a copycat class action in Illinois federal court. Bursor & Fisher says the competing firm – Foote, Mielke, Chavez & O’Neil of Geneva, Ill., which is representing plaintiff William Mignin - took its allegations “word for word.”
“And critically, in an apparent rush to file the case, Mr. Mignin’s counsel failed to provide adequate notice to Defendant concerning its warranty claims, alleging that the complaint itself served as notice,” a motion to appoint Bursor & Fisher as lead counsel says.