A putative class action complaint was filed in the U.S. District Court for the Northern District of Illinois on March 18, 2021 against Kilwins Quality Confections, a Michigan-based company with internet sales and franchises in 25 states that make various sweets on-site.  The named plaintiff alleges that a variety of candy,  was mislabeled under state consumer protection laws and food labeling statutes because it contained fewer servings and a higher caloric content than declared.

The complaint seeks more than $5 million in compensation for overpayment by consumers over a 5-year period before Kilwins purportedly corrected the alleged labeling violations.  As one example, the plaintiff claims to have paid $16.99 for a jar of Sea-Salt Caramel Topping bearing a label which stated that the jar contained 20 servings of 2-TBL and 110 calories per serving, but actually contained only 16 servings with 140 calories per serving.

The claims at issue appear to involve gross misstatements  of the net weight and caloric content on products in a niche market and, therefore, may not portend a new area of scrutiny for class action lawsuits.  Moreover, net weight lawsuits centered on violations of state laws sometimes raise complex preemption issues where different results would follow under a less complicated sampling plan under FDA’s Compliance Policy Guide which calls for selecting a sample of 48 units, and considers the sample to be in compliance if the mean of the sample is within 1% of the declared contents.