Skittles are brightly colored candies manufactured and sold by Mars Wrigley. Skittles have recently become the subject of false advertising litigation, alleging that one of the color additives used in the candies poses health risks. California plaintiff Jenile Thames filed a class action lawsuit, alleging that Mars Wrigley failed to adequately warn consumers about the presence of the additive titanium dioxide in its candies. The complaint asserts that titanium dioxide is toxic and that consumers were deprived of material information relevant to their purchasing decisions.
Why Are Nanoparticles Such a Big Deal?
Titanium dioxide is a nanoparticle commonly used to whiten or brighten consumer goods, including food and sunscreen. Nanoparticles are ultra-small particles of matter that may be organic or inorganic. Certain inorganic nanoparticles, when ingested, may accumulate in the body rather than being fully excreted.
According to NPR reporting, the European Union declared titanium dioxide unsafe as a food additive in 2021. That determination was based on the inability to rule out genotoxicity, meaning potential DNA damage resulting from particle accumulation in the gastrointestinal tract. Such damage could, in theory, lead to cancer or other health conditions. At the same time, it remains unclear whether titanium dioxide is carcinogenic. In the United States, advocacy organizations have petitioned the U.S. Food and Drug Administration to reevaluate the safety of titanium dioxide as a food additive.
Calculating Damages on a Class-wide Basis
Even if a scientific consensus is not reached and there is no regulation, consumers may still pursue legal remedies. Consumer survey research can play a central role in establishing liability and damages. If a court were to conclude that Mars Wrigley had a duty to warn consumers about titanium dioxide, survey evidence could be used to assess restitution or other damages on a class-wide basis.
One potential litigation approach would be a conjoint survey, which is a type of litigation survey frequently used in class action proceedings to measure consumer preferences for candies with and without titanium dioxide. In addition to economic analysis, it could also help estimate a consumer’s willingness to pay for a version of Skittles that excludes the additive.
Another use of litigation surveys could be a materiality survey that measures the importance of Skittles colors to consumers’ purchasing decisions. Considering the brand’s slogan, “taste the rainbow,” and the reality that brightly colored candies typically rely on additives, this research could inform whether consumers might have altered their behavior had additional disclosures been provided.
Emerging Science Cases and Survey Evidence
The Skittles litigation was voluntarily dismissed by the plaintiff. However, consumer survey research can provide courts with empirical evidence when legal questions arise relating to damage calculations, price premiums, or consumer purchasing behavior. The IMS Litigation Surveys and Consumer Sciences team designs and executes rigorous consumer research to support class certification, liability, and damages analyses.
