Sad news for the boosters of obesity litigation: a Manhattan judge has dismissed a would-be class action which asked the maker of CremaLita frozen dessert to pay for weight-gain damages because it had wrongly advertised its product as fat-free and as having 60 calories per serving when in fact it had about 10 calories more than that. After a Consumer Affairs investigation had uncovered the misrepresentation, Stephen Brandt sued, claiming “that as a result of CremaLita’s alleged false advertising …he and countless ‘other members of the class’ were put at risk of ‘severe health problems, including but not limited to cardiovascular problems, mobility problems and cancer’ as well as the ‘negative self-esteem issues’ that the ‘social stigma’ of “excess weight gain carries” in today’s culture.'”

However, Justice Emily Jane Goodman ruled that Brandt was not an appropriate representative for a class action, in part because of his difficulty in demonstrating damages. To begin with, Brandt claimed to have consumed only one serving of CremaLita per week, which meant, said the company’s defense lawyer, that his extra calorie consumption would have amounted to only 10 calories a week. Brandt, whose weight ballooned by 41 pounds over a six-year period including the seven months in which he said he’d been a buyer of the dessert, also conceded that he’d enhanced it with crumbled cookie toppings.

In court filings, the defense was rather cruel about it all: “What Brandt fails to mention,” said its lawyer, “is that he regularly eats real ice cream, McDonald’s and Wendy’s cheeseburgers, french fries, pepperoni pizza, beer, corn chips, donuts, cookies, hard cheese, eggs, bagels, peanut butter, Chinese take-out meals and pasta, [and] that he never exercises.” Moreover, “although he provided no useful information regarding his weight gain during the period that he ate CremaLita, his medical records . . . show that he managed to pack on an additional 16 pounds in the nine months after he stopped” eating the confection. (Dareh Gregorian, “Suit melts away”, New York Post, May 25; Gothamist, May 25).

Filed under: class actions, obesity