Law Review: Skip the Skittles? (Opinion)
Halloween is here. Ghosts, ghouls, and gluttons abound. Copious amounts of candy will be devoured in the coming days. A tradition with deleterious health effects. Save the children, save yourselves. Carrots, not candy. Let that be your trick-or-treat mantra. And … risk eggs raining down on your home while you rail against innocent indulgence in sugary sweets.
But fear not conscientious citizens. Rest easy knowing lawyers are out there protecting us from ourselves. Coiffed, French-cuffed crusaders making candy safer one lawsuit at a time. Skittles – “America’s favorite non-chocolate, chewy candy” – has been taken to task.
In Thames v. Mars, Inc., major confectioner, Mars, Inc., was recently sued in the United States District Court, Northern District of California, for omitting warnings about the presence of an alleged toxin in Skittles.
Back in April 2022, Jenile Thames – perhaps a confectionary connoisseur or perhaps a concerned consumer, the details are scant – decided to purchase a bag of Original Skittles from a QuickStop in San Leandro, California. Thames scrutinized the Skittles packaging and, when not warned that Skittles are harmful for the health, bought the bag of candy. Oddly, the lawsuit does not indicate if Thames ate the Skittles, but one assumes he consumed the little colored balls of chewy goodness. Better if he didn’t, though.
As it turns out, Skittles are toxic – or so Thames alleges. Mars manufactures Skittles and numerous Skittles spin-offs with titanium dioxide (“TiO2”), which is an inorganic compound used as a pigment in all sorts of products from candy to coatings, plastics to printing inks.
According to numerous studies, TiO2 is not particularly good for the body. Exposure to, and ingestion of, TiO2 may lead to DNA, chromosomal, brain, organ, and cell damage, and even genital malformations. Gone are the days of guilt free confections.
How many Skittles before you are an invalid? Who knows? But Marshawn Lynch – Cal Bear, future NFL Hall of Famer, and all-around great guy – has got to be a little worried. The man was the literal poster boy for Skittles, eating them on the sidelines of games and just about everywhere else for years. Lynch either has a very valuable plaintiff’s case or is going to make one heck of a defense witness.
France banned the use of TiO2 in food products in 2019, and as of 2020 TiO2 was no longer recognized as an additive authorized by the European Union for human consumption. The globally acknowledged risks of TiO2 were not lost on Mars. In 2016, Mars publicly committed to phase out TiO2 from its line of food products. Except that eight years later, Mars still can’t quit the stuff.
“Taste the Rainbow,” Skittles proclaims. But, as Thames deftly counters, “[t]he color of Defendant’s rainbow…is due to its use of TiO2.” And it’s not like you need the alleged toxin to make those colors pop. Swedish Fish, Black Forest Gummy Bears, Sour Patch Kids, Nerds, and even M&Ms aesthetically astound without TiO2.
And so, Thames, on behalf of a class of plaintiffs, sued Mars for violations of California’s Unfair Competition Law, Consumer Legal Remedies Act, Song-Beverly Act, and a litany of other causes of action. Not surprisingly, selling food that contains a known toxin to the unsuspecting pubic comes with some legal risk.
Thames contends he, and other similarly situated consumers, would not have purchased Skittles if Mars had warned on the packaging and/or marketing materials that TiO2 is unsafe for human consumption. Absent such warning, Thames claims he was misled to believe Skittles were free of harmful ingredients. You know, aside from sugar, corn syrup, artificial flavors, and all the other ingredients that make candy generally unhealthy.
The lawsuit is still in its infancy, but if Thames prevails, he and the class plaintiffs may be entitled to compensatory and punitive damages, and Mars may be forced to include warnings on its packaging or discontinue use of Ti02 entirely. Only time will tell Skittles’ fate. In the words of Willy Wonka, “The suspense is terrible. I hope it’ll last.” In the meantime, spurn Skittles or splurge. Up to you. Moderation will be my method.
Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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