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Skittles Have Coloring Agent Unsafe for Humans, Lawsuit Says (1)

July 15, 2022, 4:56 PMUpdated: July 15, 2022, 5:16 PM

Skittles maker Mars Inc. dupes consumers by not disclosing that the brightly hued candies contain titanium dioxide, a toxic coloring ingredient, that is unfit for human consumption, according to a proposed class action filed in federal court in California.

Titanium dioxide—which is also used in paints, coatings, adhesives, plastics, printing inks, and roofing materials—can cause DNA and chromosomal damage, organ damage, inflammation, and other health effects, according to the lawsuit filed Thursday in the US District Court for the Northern District of California.

Mars has known of the mineral’s health risks and publicly committed in 2016 to phasing out titanium dioxide, the lawsuit alleges.

However, the company hid the risk, framing the planned phaseout as a response to consumers’ demand for more natural ingredients in food products, consumer Jenile Thames alleges. Mars continues to sell Skittles with titanium dioxide, unbeknownst to reasonable consumers who buy them, he alleges.

France banned titanium dioxide in 2019, the suit says.

In May 2021, the European Food Safety Authority determined that titanium dioxide couldn’t be considered safe for consumption.

As a result, the European Commission announced that it would prohibit titanium dioxide in foods, the lawsuit says. Mars has offices in European countries and will be subject to the EC ban, the suit alleges.

A six-month phase-out period in the EU began Feb. 7. A full ban will apply Aug. 7, according to a USDA Foreign Agricultural Service posting.

In the US, Mars sells the candy and fails to inform consumers of the implications of ingesting the toxin, Thames alleges. Instead, Mars relies on the ingredient list which is provided in minuscule print on the back of the packages, he said.

Other colorful candies—including Mars’ M&Ms products, don’t rely on titanium dioxide for their appearance, Thames says.

Causes of Action: California Unfair Competition Law; California Consumers Legal Remedies Act; California False Advertising Law; breach of implied warranty; fraud; unjust enrichment.

Relief: Compensatory, statutory, and punitive damages; injunctive relief; attorneys’ fees and costs.

Potential Class Size: Unknown number of persons in nationwide class and California subclass.

Response: A Mars spokesperson said the company doesn’t comment on pending litigation.

Attorneys: Bursor & Fisher represents Thames and the proposed class.

The case is Thames v. Mars, Inc., N.D. Cal., No. 4:22-cv-04145, complaint 7/14/22.

(Updated with company response in 14th paragraph)

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com