When eating a bag of gummy candy, every calorie – or every 10 calories – should count, according to a class action lawsuit brought by a man who claims the Wrigley company should pay for stating on the front of the bag in which it sells its Starburst-brand Sour Gummy candies that the candy contains 10 fewer calories per serving than it states in the nutrition content panel on the bag’s backside.
On Aug. 30, attorneys for McGuire Law P.C., of Chicago, filed suit in Cook County Circuit Court on behalf of named plaintiff Artur Tyksinski against Chicago-based candy maker Wm. Wrigley Jr. Company, asserting the lower calorie estimates printed on the front of the bag constitutes misleading marketing and consumer fraud.
Wrigley, the lawsuit said, has “designed their packaging deceptively in order to conceal the true caloric value from the front of the package which consumers such as Plaintiff are more likely to consider in advance of their buying decision.”
The lawsuit centers on a purchase Tyksinski purportedly made sometime in 2017, when he bought a bag of Starburst Gummies Sours from an unidentified retail pharmacy in Chicago, according to the complaint.
The lawsuit asserts Tyksinski purchased the candy, in part, because the front of the bag indicated the product contained only 130 calories per serving. The government-regulated nutritional information panel on the back of the bag, however, indicated the candy actually contained 140 calories per serving, or about 60 more calories per package than was advertised on the front of the package. A serving of the candy is about 10 pieces, according to that nutritional label.
“As the manufacturer and distributor of Starburst, Defendants (Wrigley Co.) were responsible for determining the caloric value of the product and accurately displaying the true caloric value on the front of the package,” the lawsuit said. “Instead, in an effort to increase profits and prey on calorie-conscious consumers such as Plaintiff, Defendants marketed the product as having 130 calories per serving on the front of the product, typically the side of the product the consumer sees while the product is sitting on the shelf, despite knowing that in reality the product contained 140 calories per serving.”
The plaintiffs asked the court to expand the lawsuit to include a class of additional plaintiffs from throughout the U.S., and a special “subclass” of Illinois residents, who “purchased a product manufactured by Defendants that was labeled on the front of the packaging as containing fewer calories per serving than the amount identified on the back of the packaging.”
Tyksinski and his attorneys alleged the mislabeling violates the Illinois consumer fraud law and the state’s Food, Drug and Cosmetic Act.
The plaintiffs asked the court to award damages including actual damages, treble damages, statutory damages and punitive damages, plus attorney fees.
Attorneys for the plaintiffs include Myles McGuire, Eugene Y. Turin and David L. Gerbie, of the McGuire firm.