Claimant Phyllis Gustavson alleged that Mars breached federal regulations by stating that its dark chocolate Dove Bar was a ‘natural source of cocoa flavanols’ without including a fixed percentage of flavanol content to justify the claim.
She said the flavanol statements violated Food & Drug Administration (FDA) requirements for nutrient content claims both by using non-defined terms and by making nutrient content claims for a nutrient for which there is no established daily value.
Must characterize flavanol levels, says judge
Mars argued that the statement ‘natural source of cocoa flavanols’ simply notifies consumers that flavanols are naturally present in the chocolate, without in any way characterizing the level at which the flavanols are found.
However the court, under presiding Californian district judge Lucy Koh, ruled that the terminology ‘natural source’ did characterize the level of flavanols and rejected Mars’ motion to dismiss the allegation.
The latest case follows a similar complaint made by the same consumer in January over ‘misleading’ sugar-free claims on Mars-Wrigley chewing gum, which was dismissed by a Californian court.
In a separate case, Hershey is facing allegations of misleading antioxidant claims, again in a Californian court.
In the latest Gustavson case, Mars was also called out for alleged ‘unlawful and misleading’ calorie nutrient content claims on Mars chocolate bars.
Gustavson argued that the calorific statements were unlawful because they were not accompanied by a disclosure directing consumers to consult the full nutrition information panel regarding the levels of fat and saturated fat content.
According to Californian law, labels must contain this disclosure where nutrient content claims are present and products contain 13 g of fat, 4g of saturated fat, 60 mg of cholesterol or 480 mg of sodium per labelled serving.
Mars maintained that its labeling complied with regulations. But the court once again ruled in favor of Gustavson arguing that the use of the word ‘source’ in its claims implies the nutrient is present in substantial quantities.
Mars said that it did not comment on pending litigation when contacted by ConfectioneryNews. Gustavson’s lawyers were also contacted, but failed to respond before publication.